NOBLE DEHYDRATES Vs. OCEANIC FOODS PVT LTD

JUDGEMENT

(1.) THIS Company Petition has been filed by the petitioner Noble Dehydrates for an appropriate order of winding up of the respondent company Oceanic Foods Private Limited under the provisions of the Companies Act; 1956.

(2.) IT is the contention on behalf of the petitioner that the petitioner supplied 1300 kgs dehydrated tomato flakes by invoice dated 31.3.2006 worth Rs.1,10,500/ - to the respondent company and the aforesaid goods were received and consumed by the respondent company without any complaint but the payment was not made. It is further submitted that after several telephonic attempts as the payment was not made, a statutory notice under Section 434 of the Companies Act came to be served upon the respondent company i.e. on 22.5.2006. It is the case on behalf of the petitioner that the false and fabricated reply dated 25.5.2006 was received on 1.6.2006. That the petitioner received letter dated 24.4.2006 and the debit note dated 25.4.2006 for the first time along with the aforesaid reply. It is submitted that concocted story of the respondent was falsified from the fact that the petitioner supplied tomato flakes whereas the documents at Annexure D and E referred to Tomato Powder. It is submitted that as a counterblast the respondent also issued one more legal notice dated 1.6.2006 for damages and for supply of other goods which the petitioner replied. It is submitted that as company is indebted to the petitioner for a principal sum of Rs.1,10,500/ - along with interest accrued thereon and as the said amount is not paid, the said company is unable to pay its debts and is otherwise commercially insolvent and incapable of paying its debts and therefore, it is requested to allow the present Company Petition and pass an appropriate order of winding up of the respondent company.

(3.) IN response to the notice issued by this Court, the respondent company has appeared and filed affidavit in reply. In the reply the debt is disputed. It is submitted in the reply that the company is doing business with the petitioner since 2002 and apart from the alleged transactions, there is no outstanding amount due and payable by the respondent company to the petitioner. It is submitted that in fact, the respondent company has made regular payment to the petitioner for all these years for purchase of goods. It is further submitted that for the period of last two years the respondent company has purchased material from the petitioner to the tune of Rs.55 Lacs and has made the payments in time. It is further submitted and it is denied that 1300 kgs of tomato flakes was consumed by the respondent company without any complaint. It is further submitted that after receipt of the goods it was sent to the Quality Control Department of the respondent company wherein, by Test Report dated 24.4.2006 it was found that the said goods was not advisable for human consumption due to presence of pathological organism. It is submitted that as soon as the respondent company received the Laboratory Analysis Report, the Officer of the respondent company immediately informed orally / telephonically to the petitioner company and in reply, one Shri Arpit Singhal of the petitioner company categorically instructed the respondent company to dispose of the said goods. It is submitted that since the purchase bill was credited in the ledger account the respondent company immediately sent a debit note for the equal amount of purchase bill. Thus, there was no question of any recovery of the outstanding amount for the subject goods. It is further submitted that the financial condition of the respondent company is very sound and they are one of the largest manufacturers and exporters of dehydrated spices and vegetables and there are more than 58 workmen engaged in the company. It is submitted that the respondent company is going concerned having annual turn over of Rs.1146 Lacs for the year 2005 2006. It is also further submitted that even for the year 2004 -2005 and 2003 -2004 also the respondent company was having annual turn over of Rs.930 Lacs and Rs. 743 Lacs respectively. Thus, it is submitted that the company is a going concerned and has not lost its financial substratum and therefore, it is requested to dismiss the present Company Petition.