TAYAL POTTERIES Vs. MACROPLAST P LTD

JUDGEMENT

(1.) By means of the abovenoted company petition filed under Sections 433 (e) and 434 (1) (a) of the Companies Act, 1956 (The Act in short), the petitioners M/s. Tayal Potteries through its sole proprietor (hereinafter referred to as the petitioners) have sought the winding up of the respondent-company M/s. Macroplast Pvt. Ltd. (Respondent-company) on the ground that the said respondent is unable to pay its debts, consequently, it be wound up.

(2.) Briefly stated the petitioner' case is that it is engaged in the manufacturing of bushing which are used for transformers. On the orders placed by the respondent-company which is basically engaged in the manufacture of transformers, the petitioners supplied goods. The respondent-company defaulted in making payment, consequently, a sum of Rs. 89,123.75 paise as on 25.3.95 was due besides interest at the rate of 24% per annum. On request for payment, the respondent issued a cheque for Rs. 90,000 on 8.4.1995 which was returned by the Bank for the reason that the same exceeded arrangement. When the said fact was brought to the notice of the company, one of its Directors Shri S. K. Mishra by means of the letter dated 26.8.1995 expressed regrets and assured the clearance of the dues alongwith compensation, at an early date. It transpires that the said promise was hollow as no payment was made. Consequently, the petitioners were constrained to serve a statutory notice of demand dated 52.7.1997 for the aforesaid amount alongwith interest. Despite the service of the notice at the registered office of the respondent, the company failed and neglected to pay the same, consequently the present petition. It is noteworthy that the affidavit in support of the petition was filed by the Satyendra Veer, son of late Baljeet Singh, resident of 409, W. K. Road, Meerut as pairokar and the petition was also signed by the said pairokar.

(3.) On notice being issued, the company put in appearance and filed objection which was supported by an affidavit of one of its directors namely, Shri A. K. Misra, wherein it was, inter alia, asserted that the supplies made by the petitioners were defective and of poor quality on account of which the consignment meant for Orissa got damaged during transit and the same was of no use. It was further stated that, in the meantime, dispute arose between the directors and one Satyendra Veer, Ex-director of the company after obtaining an order from the S.D.M., Dadri took possession of the factory on 13.4.1995. Subsequently, however, on contest the factory was handed over to the present Board of Directors but the said order was stayed by the High Court. Ultimately the matter was settled by compromise and the company purchased the shares of Satyendra Veer. The cheque which was dishonoured, was during the period when the dispute was going on with the Ex-director Satyendra Veer. It was pleaded that the petitioners were not entitled to any payment for the damaged goods supplied and there was a bona fide dispute with regard to the same, consequently the petition was not maintainable. It was also asserted that the company is commercially sound and can meet its financial commitments and it is incorrect to state that it has become insolvent or cannot pay its debts.