PRANOB AND COMPANY P LTD Vs. BAPI CONSTRUCTION

JUDGEMENT

(1.) The petitioner has sought winding up of the company upon the company's refusal to refund the advance made in pursuance of a purchase order which the company failed to execute.

(2.) Three purchase orders were issued on December 12, 2003 by the petitioner on the company for supply of Counter Weight Plates of divers specifications. According to the petitioner, a sum of Rs. 15,50,000/- was paid by way of advance by the petitioner to the company in respect of the three purchase orders. The company supplied material against two of the purchase orders. After adjusting the company's bills of Rs. 11,35,650/- against the supplies made, the balance of the advance made remained refundable. A sum of Rs, 86,341/- was thereafter paid by a cheque dated January 13, 2004. The petitioner has claimed the balance amount after giving credit to the company for the part payment of Rs. 86,341/-. The balance principal sum claimed of Rs. 3,28,044/-, though the figures Rs. 11,35,650/-; Rs. 3,28,044/- and Rs. 86,341/- do not add up to Rs. 15,50,000/-.

(3.) The petitioner's first demand, relied upon in these proceeding, was by a letter issued by its advocate on March 22, 2005. In reply, it was contended on behalf of the company by its letter of April 24, 2005 that by letters dated July 31, 2004 and January 18, 2004 the company had reminded the petitioner that due to the petitioner not lifting the goods, the plates had to be "remelted". The company also claimed that in respect of transactions with the petitioner and its sister concern, U. K. Construction, the company had allegedly suffered loss of Rs. 4,66,092/- and that after giving credit of Rs. 3,28,044/- to the petitioner, a sum of Rs. 1,38,048/- remain due to the company. The petitioner responded by denying that any letter of July 31, 2004 or January 18, 2005 had been written by the company to the petitioner reminding the petitioner that on account of the goods not being lifted, the company had suffered any loss. The petitioner admitted receipt of two letters and claimed that by such letters the company had merely sought sales tax declaration forms.