CENTURY ENKA LTD Vs. RAMA FILAMENT PVT LTD

JUDGEMENT

(1.) The petitioner namely, Century Enka Ltd. has filed this petition under Section 433 (e) read with Section 434 of the Companies Act, 1956 for winding up of the respondent Company. It is the case of the petitioner that as per the order placed by the respondent with the petitioner, the petitioner through its division, Rajeshri Polyfil had sold, supplied and delivered Polyester Filament Yarn ( POY/PFY) to the respondent for a total amount of Rs.1,50,23,161. The petitioner had also raised various invoices on the respondent for the said aggregate amount of Rs.1,50,23,161/- towards the goods sold, supplied and delivered by the petitioner. It is also the case of the petitioner that the respondent accepted the said goods and the said invoices of the petitioner without raising any objection with respect to the quantity, quality or price thereof. The respondent has also utilised the said goods in the normal and usual course of its business of texturising and processing of yarn.

(2.) It is also the case of the petitioner that the respondent has failed and/or neglected to pay the said amount to the petitioner. It is also the case of the petitioner that as per the agreed terms of the contract, the respondent is liable to pay to the petitioner interest at the rate of 21 % per annum for delay in payment beyond 7 days from the date of invoices. The respondent has delayed the payment and hence the petitioner has raised debit notes on the respondent for Rs.18,54,352/- towards interest payable till 30-6-2000 which have been duly accepted by the respondent. It is also the case of the petitioner that as on 30-6-2000 accounts were finalised and after giving credit of Rs.1,22,385/- against the invoices/debit notes for payments received or adjusted, the respondent has confirmed the liability of Rs.1,67,55,128/-. The respondent had issued two cheques dated 5th July, 2000 for the aggregate amount of Rs.1,67,55,128/- for the discharge of its liability. However, both these cheques when presented for payment have been dishonoured by the respondent's banker. The petitioner was therefore, constrained to initiate criminal proceeding under Section 138 of the Negotiable Instruments Act for dishonour of the said two cheques.

(3.) Since no efforts were made by the respondent for the payment of the outstanding dues, the petitioner had to ultimately serve the notice under Sections 433 and 434 of the Companies Act, 1956 calling upon the respondent to pay total amount of Rs.2,07,97,401/- being the amount payable to the petitioner inclusive of interest till 30-9-2000 and with further running interest at the rate of 21 % per annum from 1-10-2000 till the final date of payment. Inspite of the service of the said notice upon the respondent, the respondent failed and/or neglected to pay the debt or any part thereof and hence, the petitioner was constrained to file the present winding up petition before this Court.