MADHUR FOOD REFRIGERATION Vs. ROADMASTER FOODS LTD

JUDGEMENT

(1.) THIS petition under sections 433, 434 and 439 of the Companies Act, 1956, filed by Madhur Food Refrigeration, a partnership concern with the prayer to order the winding up of Roadmaster Foods Limited hereinafter referred to as the respondent-company. The claim of the petitioner is that the respondent-company had approached the petitioner for supply of chilled milk to its factory at 18 KM Stone, Ghaziabad, Hapur Road, Ghaziabad. The milk supplies in pursuance of the said demand were effected from September, 1995, during the period 1995-96. The petitioner was raising bills for the supplies effected from time to time and as on April 4, 1996, the debit balance of Rs. 20,65,930 was confirmed by the respondent-company in furtherance of which various demands were made by cheque. Some of them were dishonoured. Fresh cheques were issued in lieu thereof which were encashed even as late as on January 29, 1995. The last cheque which was for Rs. 95,000 was encashed. It is further averred that the accounts were again reconciled on February 4, 1997 and payment due to the extent of Rs. 2,01,373. 70 was found due and payable. This statement of account was confirmed. The petitioner claimed interest and served the notice under section 434 of the Companies Act on February 13, 1977, which was duly served upon the respondent-company to clear the said liability within a period of 21 days from the date of the receipt of the notice. Having failed to recover the amount, the present petition for winding up of the company has been filed.

(2.) UPON notice, the respondent appeared in this court and filed a detailed reply. The case of the respondent is that there were short supplies effected by the petitioner and suddenly they stopped the supplies after December 10, 1996, as a result of which losses have been suffered in terms of the agreement between the parties by the respondent-company. They claimed to have issued a debit note on January 31, 1997. They admitted that a sum of Rs. 30,527 is due and payable to the petitioner from the respondent-company which they are willing to pay. From the above narrated facts it is clear that the parties are not at dispute with regard to the basic fact. It is admitted that supplies were made and also that substantial payments were made. The dispute is only with regard to the supplies remaining unpaid the defence for which is issuance of debit note on account of losses leaving admittedly a credit balance to the petitioner to the extent of Rs. 30,527. It must be noticed at the very outset that even a sum of Rs. 30,527 was not tendered or paid to the petitioner-company in spite of notice under section 434 of the Companies Act. The only dispute which has to be gone into at this stage is whether the dispute or the stand taken by the respondent-company is bona fide and is apparently supported by record which would take the present case outside the jurisdiction exercisable by the company court while entertaining the petition for winding up. It has been specifically averred in the petition and the notice under section 434 of the Companies Act, served upon the respondent-company that the debit balance which was confirmed between the parties through Bhupinder Rastogi accountant of the respondent was Rs. 20,69,930. It is further averred that various payments were made thereafter towards this admitted liability. Some of the cheques were returned unpaid and the respondent-company had issued several cheques in lieu thereof. The last cheque was issued on January 29, 1997, for sum of Rs. 95,000 drawn on State Bank of India, New Delhi, which was encashed on presentation. At this stage it will be pertinent to note a specific contention of the petitioner-company which was first made in the notice served upon the respondent-company under section 434 of the Companies Act and thereafter in the petition relating to confirmation of the amount by a person not less than the Deputy General Manager Finance of the respondent-company on February 4, 1997. In paragraph 7 of the petition, the petitioner has stated as under :

(3.) IT is clear from the above reply that the statement of accounts of April, 1996, as well as dated February 4, 1997, annexures P-1 and P-3 annexed to the petition were signed by the responsible officer and even payments in furtherance of such statement of accounts were made by the respondent-company. What was the occasion to give the statement of account in good faith when an officer of the rank of Deputy General Manager, Finance goes to the office of the petitioner to confirm the accounts. It is expected that he would have acted with due diligence and care and some sense of responsibility. It is very difficult to believe at this juncture that the confirmation by Rastogi and Goel was merely in good faith and has to be overlooked for all purposes and intents. The reply given by the respondent-company to the notice does not spell out any definable stand which can be termed either bona fide or a just cause for declining to pay the amount which at one point of time or the other was admitted by the respondent-company.