SOUND FIBRE Vs. B.K. DUPLEX LTD.

JUDGEMENT

(1.) THE petition for winding of the company has been filed at the instance of a creditor on a contention that for a debt due by the Respondent company to the Petitioner, a "statutory notice had been issued and although the liability was an admitted one, the amount had not been paid. Treating the company as one which is unable to pay its debts, the petition for winding up was filed. Some more details are necessary for a case that has been instituted in the year 1998 and which is arriving for its adjudication at this length of time.

(2.) THE petition filed under Section 439 read with Section 433 (c), (e) and (f) and Section 434 read with Section 439(1) read with the relevant company rules had been originally instituted by the Petitioner describing itself as a company. Later, on objections on behalf of the Respondent, an amendment had been made describing the Petitioner as a proprietorship having its office in Los Angeles and represented through a constituted attorney and agent, Shri S.K. Verma. The basis of the claim was for value of goods supplied to the Respondent company and, at the time of filing of the petition, the Petitioner had complained that the Respondent company was indebted to a sum of US $ 91,702.72 with interest. The Petitioner had also spelt out the details of the invoices for the goods supplied. Prior to the filing of petition also, there had been exchange of communication when by a letter dated 10.04.1997, the Respondent company admitted the reference to the invoices and the amounts mentioned under the respective invoices as having been finalized and while admitting its liability, the company stated in the following words:

(3.) IT appears that the Respondent company back -tracked from its promises of payments as made in its reply but started taking up issues, like the quality of the goods supplied was not good and they are unable to make the payments. In the letter of the Respondent company sent later (Annexure 45), there is a reference to the fact that Petitioner company itself had consented to discount the bills by 45,000 US dollars. The Respondent company thanked the Petitioner for its show of concession, again, reiterated that the amounts due to the Petitioner company would be paid soon. As regards the financial condition, the Respondent company again stated,