MAIKSAL FIBRES LTD Vs. VINIYOGA CLOTHEX LTD

JUDGEMENT

(1.) SUDHIR Narain, J. The petitioner, M/s Maiksal Fibres Limited, New Delhi, has filed this petition for winding up the respondent company M/s. Viniyog Clothex Ltd. having its registered office at B-l Udyog Kunj, U. P. S. I. D. C. Industrial Area, Dasna, District Ghaziabad (hereinafter referred to as the respondent Company ).

(2.) THE winding up has been sought on the ground that the respondent company is unable to pay its debts. THE version of the petitioner is that the respondent company has been purchasing Bio Cotton Yarn from the petitioner and supplies have been made to it from time to time. THE petitioner maintains a running account against the supplies and the respondent makes periodic payments. THE respondent company issued three cheques to the petitioner in the month of March 1996 but those cheques were dishonoured. THE details of cheques and the reason for dishonour given by the Bank have been mentioned in paragraph 6 of the petition which are as under:- SI. Cheque Amount Bank Reason No. NOS. and Rs. for date Dishonour 1. 6959 4,50,000/- Canara Payment dt. 31-3- Bank Ind. Stopped 1996 Fin. Branch New Delhi 2. 6960 4,70,448/- -do- -do- dt. 31-3- 1996 3. 6958 5,00,000/- -do- Exceeds dt. Arrange- 26. 3. 1996 ment.

(3.) THE real controversy is as to whether there is any bona fide dispute regarding the amount claimed by the Petitioner Company against the respon dent Company. It is not denied that respondent Company issued three che ques in the month of March 1996, the details of which have been given above. THE first cheque of Rs. 4,50,000/- was dishonoured because the payment was stopped. THE second cheque of Rs. 4,70,448/- was also dishonoured for the same reason. THE third cheque of Rs. 5,00,000/- was dishonoured on account of the fact that the amount exceeded the ar rangement. In paragraph 6 of the counter-affidavit filed on behalf of the respondent company it is not denied that the cheques were issued by it to the petitioner. THE contention is that there was a tripartite agreement between the petitioner, respondent Company and Remei AG, that once the supply is made to Remei AG by the respondent Company the latter would make payment for the entire consignment, out of which the cost of yarn purchased from the petitioner will be paid to the petitioner. THE respondent Company has not placed any material on record to show that there was such an arrangement. THE petitioner was supplying yarn to the respondent Company and it after having manufactured from the yarn made sup pliers to M/s Remei AG. THE respondent Company had issued the cheques in the month of March 1996 and after the che ques were dishonoured, took up the mat ter with M/s Remei AG. M/s Remei AG is a sister company of which Mr. P. Hohmann is a Managing Director. THE respondent Company wrote a letter dated 18-5-1996 to the petitioner enclosing certain docu ments to be handed over to Mr. P. Hoh mann, a true copy of such letter is annexed as Annexure-2 to the petition. THEy al leged that the letter contained certain documents giving details of various ac counts of the respondent company includ ing the amount due to the petitioner. THE respondent company also gave another letter dated 18-5-1996 to Mr. P. Hohmann with enclosures containing the said ac counts, a copy of which is Annexure-3 to the petition. THE amount payable to the petitioner company is shown a Rs. 9. 70 lacs. THE respondent company has ad mitted that the letter was sent but has denied the statement of accounts as indi cated in the said annexure. It is, however, not explained that in the letter a specific acknowledgment regarding the statement of account was given which is quoted below:- "i sincerely thank you for giving me an opportunity to explain the reasons for delay in clearing the payments of M/s Hindustan CIBA Geigy, Maiksal Fibres and Patodia Syntex. I am enclosing a statement of Account of all the three parties along with explanatory notes. You may observe that the net amount payable from out side is Rs. 1,440,000 (Rs. 14. 40 lacs ). Kindly note that this amount does not include the interest payment to these par ties, which also be paid by us after clearing of the pending dues. Out of the total amount, we shall clear Rs. 4. 4 lacs, before 30th May and balance in (2) two instalments before 30th June 1996. "