MODERN MALLEABLES LIMITED Vs. INDIAN RAYON INDUSTRIES

JUDGEMENT

(1.) The Court : This was an application for winding up of the company under sections 433, 434 and 439 of the Companies Act, 1956. The petitioner alleged, that a sum of Rs. 8,17,000.00 was due and payable to the petitioner by the company on account of supplies of divers electrical components. According to the petitioner, the company had issued its purchase-order dated May 10, 1996 which contained particulars of the supplies to be made by the petitioner, and also the agreed rates. After the supplies had been received and accepted by the company, it would appear that under its covering letter dated September 30. 1996 the petitioner had made over to the company the corresponding invoice together with a packing-list, and in acknowledgement the company had issued a post-dated cheque, dated October 10, 1996 for a sum of Rs. 8,17,000.00, which was the entire consideration money. According to the petitioner the cheque had been dishonoured upon presentation, and by its letter dated November 20. 1996, written to the company, the petitioner demanded payment of its dues and the company by its letter dated January 21, 1997 admitted the claim of the petitioner and requested for time to enable the company to arrange for funds. It would also appear that the petitioner allowed such time. By two letters dated July 24, 1997 and December 9, 1997 the petitioner issued the necessary statutory notice of demand. It was submitted by advocate for the petitioner that the contract between the parties, and its terms and conditions were fully set out in the purchase order which had been issued by the company. He contended that the alleged relationship between the parties of being complimentary suppliers to each other was wholly baseless and had been manufactured in the affidavit of the company for the first time, and that not a scrap of paper or any record to substantiate such allegation had been produced by the company before this court. He submitted that the purported defence of the company, including the allegation of the parties maintaining an open mutual and current account, had been concocted after it had received the statutory notice of demand.

(2.) In its reply to the statutory notice of demand dated August 22, 1997, the company alleged that several national and international projects had been jointly executed by the company and the petitioner, and that they were complimentary supplies to each other in respect to supply of electrical components to the Uttar Pradesh State Electricity Board, Nepal and Jordan. I shall in this judgement collectively refer to the three parties as "the alleged buyers". According to the company, an open mutual and current account had been maintained by the parties for all transactions that had taken place between them, and that the alleged dues to the knowledge of the petitioner, had been adjusted with the dues of the company which were payable by the petitioner, and that the same had been recorded in a letter dated August 22, 1997. It was argued by counsel for the company that any purchase of electrical components which the parties had made from each other, towards supplies to be made to the three alleged buyers, were considered by the parties to be one single transaction, and consequently the company had maintained one single account. According to him on the basis of such understanding, and consequent practice followed by the parties in keeping of accounts, the alleged outstandings of the petitioner which were payable by the company in the Nepal account, were adjusted by the company against the dues of the company which were payable by the petitioner, in the Jordan account. He submitted, that after adjustment of their mutual dues, according to the accounts of the company large sums of moneys, far in excess of the alleged dues of the petitioner, remained payable by the petitioner to the company and that the company had been advised to institute a suit against the petitioner for the recovery of its dues. He contended, that unless complete accounts were rendered by the parties, of all purchase which the parties had made from each other in connection with their supplies to the three buyers, it could not be concluded that the alleged claim was a debt, which the company either was or could be required to pay. He argued, that from the recordes and the facts produced before this Court by the parties, there was a valid and substantial counter claim by the company against the petitioner, and on that basis this application was liable to be dismissed. In support of his submissions, counsel for the company cited and relied on an unreported judgement by an Hon'ble Judge of this Curt dated April 28, 1993 (C.O. No. 312 of 1992. In the Matter of Central Inland Water Transport Corporation Ltd and In the Matter of Bangla Engineering Co. Ltd.)

(3.) The allegations of the company that the parties had jointly executed national and international projects, and were mutual suppliers to each other, or that consequently one mutual, open, current and continuous account had been maintained by the parties in respect to all their transactions relating to supplies which had been made by them to the three alleged buyers, were mere assettions without any base or basis whatsoever. There were no material to substantiate the bold allegations, which appeared to have indeed been made for the first time in the company's reply to the statutory notice of demand. The company had ofcourse by that time aware of the intentions of the petitioner. The company sought to reply on "annexure B" to its affidavit which was a document bearing no semblance of authenticity, and could by no standard be considered to be a commercial communication. There was nothing before this Court which would establish any basis for the preparation of the alleged statement of accounts. It was not possible to ascertain from the materials before this Court, either as to the despatch to or receipt by the petitioner of the document. The company had admittedly issued the cheque for the sum of Rs. 8,17,000.00 in favour of the petitioner, and the cheque had been dishonoured. In its affidavit in opposition, the company sought to explain that the cheques were made over only as securities, until the dues of the company were adjusted in the accounts of the parties. There was no contemporaneous letter by the company in that respect. No explanation was put forward by the company as to its categorical admission of its debt to the petitioner, in its letter dated January 21, 1997. It was significant, that the admission by the company of its debt to the petitioner was without any reservation. In the unreported decision of an Hon'ble Judge of this court, which was cited and strongly relied on by counsel for the company in support of his submissions, the Hon'ble Judge had in no uncertain terms recorded that, "in accordance with decided authorities which uniformly laid down that a winding up petition was usually improper where the claim of the petitioner was based on a building contract" and the petition was dismissed, as His Lordship was of the view that there could be valid counter claim and set offs. The case before this court did not concern a building contract. In the circumstances, I would be inclined to hold that the company had failed to establish prima facie that there was any jural relationship between the parties with reference to the alleged arrangement of supply to the three alleged buyers and clearly therefore there was, nor could be any, counter-claim of set off by the company against the petitioner in respect to the petitioner's claim.