GREWAL ASSOCIATES P. LTD. Vs. SMJ EXIMP LTD.

JUDGEMENT

(1.) THE winding up petition has simply proceeded on the basis of default in payment of the price of the coal supplied to the company. Two invoices are annexed to this winding up petition evidencing the goods so supplied which according to the petitioners was received by the company by putting the rubber seal and signature. The petitioner also annexed the confirmation of accounts dated April 1, 2011, confirming the balance by the company by putting the rubber seal and the signature and the date at the footnote. The statutory notice is also served on the company. The acknowledgment due card bears the rubber seal and signature. According to the petitioner, it is undisputed that the supplies were made to the company who after receiving the same avoided the payment. The company admittedly did not reply to this statutory notice. The affidavit -in -opposition filed by the company reveals the defences taken against the alleged claim of the petitioning -creditor. It would be relevant to narrate the excerpts of the defences taken by the company in the affidavit. The company at the very outset took a plea that the rubber seal and the signature appended on the purported tax invoices and the confirmation of an account do not bear the actual seal of the company and the signature of its officials. The company has gone further to say that those are fabricated and/or manufactured ones. The company further says that the manufacturing unit of the company at Matkambeda, Barbil, Orissa was leased out to one Expo Minerals P. Ltd., who ran the said factory till May 12, 2010 and the company resumed the control and management of the said manufacturing unit on and from May 13, 2010.

(2.) IT would further be borne out from the said affidavit that two letters were caused on the said Expo Mineral P. Ltd., by the company concerning the demand of the petitioning creditor with a clear stipulation that if any liability exits the same to be paid by the said lessee.

(3.) THE learned advocate appearing for the petitioner vehemently submits that the company has not denied the service of the statutory notice and admittedly no reply thereto was given. According to him if the statutory notice is not replied, it raises a presumption of the company's acknowledgement of liability. He placed reliance upon a judgment of the Gujarat High Court N. Desai Papers P. Ltd. v. Computer Skill Ltd. : [2012] 171 Comp Cas 158 (Guj.) and a judgment of this court in the case of K.T.S. (Singapore) Plc. Ltd. v. Associated Forest Products P. Ltd. reported in : [1996] 85 Comp Cas 190 (Cal.). He further submits that it is immaterial who is managing or controlling the company if it can be proved that the supplies are made to the company and placed reliance upon a judgment of this court in the case of Carboxy Chemicals P. Ltd. v. Deepika Housing Projects P. Ltd. reported in : [2008] 146 Comp Cas 24 (Cal.) : [2008] 1 CHN 419. It is audaciously submitted that the letters issued to the alleged lessee, i.e., Expo Minerals P. Ltd., by the company would suggest that the company has acknowledged the liability of the petitioning -creditor and the same should be construed as an admission on its part. Therefore, he concludes that the company has not raised any bona fide dispute nor could make out any defence to the claim of the petitioning -creditor and the order for winding up of the company should be passed.