ASHIS KUMAR DEWANJEE Vs. JAGDUARTEA AND TRADING CO

JUDGEMENT

(1.) This is an application under Sections 433/ 434/439 of the Companies Act, 1956 praying for winding-up of the Jagduar Tea and Trading Company Pvt Ltd. due to the inability of the Company to pay its debts.

(2.) The facts and circumstances leading to institution of the present proceeding are sketched herein. The two petitioners are partners of a partnership Firm known as M/s. Apex Industries. The respondent is a Private Limited Company. The Managing Director oi the respondent/Company vide communication No. JTE/92/0426 dated 4.4.92, placed orders with the petitioners for supply of 2,000 (two thousand) sets of tea chests and 1000 (one thousand) pieces of Jute bags for the season 1992 in two consignments - one in the last part of April, 1992 and the other in the month of July, 1992. By the said communication, the Managing Director requested the petitioners to supply one thousand sets of 40 x 50 x 60 Cms of ISI marked complete tea chests and five hundred numbers of Jute Bags with Poly- liner as first consignment and another one thousand sets of 40 x 50 x 60 Cms size of ISI marked complete tea chests and five hundred numbers of Jute Bags with Poly-liner as second consignment. Pursuant to the above order of the Managing Director of the respondent/Company dated 4.4.92, the petitioners supplied one thousand sets of ISI marked tea chests of 40 x 50 x 60 Cms in size complete with panels, fittings and Aluminium linings vide ChallansNos. 605 dated 25.9.92, 606 dated 28.9.92 and thousand sets of ISI marked battens of the sizes of 40 x 50 x 60 Cms vide Challan No. 603 dated 16.9.92. The respondent/Company duly received the said tea chests and acknowledged receipt of the same. The petitioners thereafter sent Bill No. JTE/002/92-93 dated 28.9.92, by registered post to the respondent/Company for Rs.70,720/- (Rupees Seventy thousand seven hundred twenty) only for supply of one thousand sets of ISI marked tea chests of the requisite size complete with panels, fittings and Aluminium linings, and another bill bearingNo. JTE/002A/92-93 dated 28.9.92 by registered post to the respondent/Company for Rs. 12,480/- (Rupees twelve thousand four hundred eighty) only for supply of one hundred sets of ISI marked tea chest battens. According to the petitioners, those bills were received by the respondent/Company in the usual course of business, but the respondent/ Company neglected and failed to pay the said bills amounting to Rs.83,200/- (Rupees eighty three thousand two hundred) only in spite of repeated demands and requests. It is further stated by the petitioners that the aforesaid amount of Rs.83,200/- was inclusive of the Central Sales Tax amounting to Rs.3,200/-. The petitioners contended that the respondent/ Company was to pay interest at the rate of 18% per annum from the date of the bill and was also to submit inter State Sales Tax Declaration Form and Sales Tax in lieu thereof. Vide communication dated 22.5.93, the Managing Director of the respondent/ Company informed the petitioners that it would make payment of the bills of the petitioners dated 28.9.92 immediately on completion of the procedural formalities. But despite the aforesaid information, the Managing Director of the respondent/ Company neglected to pay the outstanding bills of the petitioners. Thereafter a notice under Section 434 of the Companies Act, 1956 was served on the respondent by Registered Post with A/D at its registered office demanding payment of Rs.83,200/- together with interest at the rate of 18% per annum from 28.9.92 to 28.8.94, amounting to Rs.28,704/- coming to an amount, of Rs. 1,11,904/- (Rupees one lakh eleven thousand and nine hundred four) only in total. Despite receipt of the aforesaid communication, the respondent/ Company did not make any reply nor did it pay any of the bills of the petitioners. Accordingly, the petitioners initiated the present proceeding.

(3.) By an order dated 30.10.95, the Company Court issued notice calling upon the respondents to show cause as to why the application was not to be allowed. The respondent did not file any objection. The Company Court by its order dated 5.2.96, ordered the petitioners to make advertisement as per the Company Court Rules. Thereafter iin due course the matter was placed for [hearing. However, the respondent/Company filed its objection/affidavit on 19.3.96. In that affidavit, the respondent sated that the Management of the respondent/Company was taken-over by the Sonari Tea Estate by a Memorandum of Understanding dated 25th December, 1992 and the Company was represented by Shri Ajit Khound, the Managing Director and Shri Mrinal Chandra Khound, Asstt. Managing Director and a new Board of Directors was constituted and the actual management was taken-over in March, 1993. In the affidavit, the respondent further pleaded that after taking over the management, it was necessary to conduct check and enquiry in respect of the affairs of the previous management. While doing so, it was found that at the Garden at Jorhat, no delivery of materials (chests) as claimed by the petitioners was ever made in July, 1992 or thereafter; even the challans as mentioned and the stock at the Garden was not shown in the receipts. The Company management, therefore, by its communication dated 22.5.93, informed the petitioners that they had taken over the management of the Garden in March, 1993 and necessary accounts and pending liabilities were under scrutiny. On completion of the procedural works, the respondent/Company found that the claim of the petitioners was baseless except the letter dated 10.2.92. It was further alleged that the Company's accounts and records did not show any payment to the Roadways (carriers) against the consignments and stated that the Challans did not reflect any delivery of such consignments having been made, nor was there any receipt of the materials. The respondent further stated that the bills dated 28.9.92, showed that the C/Note and dated 1.10.92, when the consignment Notes were not even born and tried to find discrepancies with the bills of the petitioners. The respondent/Company disputed the claim of the petitioners and submitted that since the petition involved disputed questions of fact, the same was liable to be dismissed. To the aforesaid affidavit of the respondent/ Company, the petitioners filed a reply and stated that the respondent/Company was an existing company and the liabilities of the respondent/Company cannot be avoided as agreed in the Memorandum of Understanding. The petitioners in the affidavit-in-reply, referred to a communication of Shri A Khound, ex- Managing-Director of the respondent/ Company to the Managing partner of the Sonari Tea Estate for settling;the outstanding dues of the firm of the petitioners and a copy of the same was sent to the petitioners. The petitioners further sent a copy of the said communication to the respondent/Company vide their letter dated 8.10.93. The letter referred to above written by the Ex-Managing Director of the respondent/Company to one of the Managing partners of Sonari Tea Estate, reads as follows: