GANGESHWAR LTD Vs. INDIA COAL TRADERS

JUDGEMENT

(1.) VIKRAM Nath, J. Both these appeals have been filed under Section 483 of the Companies Act, 1956 (for short referred to as the Act) against judgment and order of the learned Company Judge dated 8-12-1999 passed in Company Petition No. 43 of 1998, in the matter of M/s. Gangeshwar Ltd. The learned Company Judge by the order impugned in the two appeals had issued the following directions : (i) M/s. Gangeshwar Ltd. to pay an amount of Rs. 23,31,072. 95p. to M/s. India Coal Traders within one month; (ii) M/s. Gangeshwar Ltd. to submit Fixed Deposit Receipts of Rs. 12,58,830 with the Registrar General of this Court within two months; (iii) M/s. Gangeshwar Ltd. to file Suit for declaration regarding interest liability; and (iv) M/s. Gangeshwar Ltd. to file Suit for declaration regarding its other liability.

(2.) SPECIAL Appeal No. 16 of 2000 has been filed by M/s. Gangeshwar Ltd. for setting aside the judgment of the learned Single Judge dated 8-12-1999 and further to dismiss the winding up petition (Company Petition No. 43 of 1998 ).

(3.) M/s. Gangeshwar Ltd. is a Company registered under the Companies Act, 1956 (hereinafter referred to as the Act) and is carrying on the activity of manufacturing sugar. It was placing orders for purchase of coal from M/s. India Coal Traders. The supplies were regularly being made by M/s. India Coal Traders, the last one having been made on 25-6-1992. Certain payments with regard to the supplies made remained pending whereupon M/s. India Coal Traders issued notices demanding the pending amount. During the period 20-11-1993 to 8-4-1995 M/s. Gangeshwar Ltd. made part payment of Rs. 19,000,00/- in instalments, the last payment having been made on 8-4-1995. M/s. India Coal Traders after waiting for some time issued another notice raising demand for the balance amount. However, when it was not paid, it filed Company Petition No. 43 of 1998 for winding up, after expiry of statutory period of notice under Section 434 of the Act alleging that the said company was unable to pay its debts which included principal amount of Rs. 23,31,072/- being the price of coal supplied plus interest @ 18% amounting to Rs. 41,60,623/ -. Notices were issued to M/s. Gangeshwar Ltd. Upon notice M/s. Gangeshwar Ltd. appeared and contested the matter and claimed that full and final payment have been made and there was no amount due against them and winding up petition deserves to be dismissed. It raised various other objections. Despite effort by the Company Judge for reconciliation, when the parties did not agree, after hearing the parties and after considering the material on record, before advertising under Rule 24 of the Rules framed under the Act the learned Company Judge passed the order dated 8-12- 1999 which is impugned in these two appeals.