GOYAL ELECTRI-STEELS CASTINGS Vs. DIDWANA CHEMICALS LTD

JUDGEMENT

(1.) THE authorised share capital of the respondent -company, Didwana Chemicals Ltd., Marwar Balia Didwana, respondent No. 1, which is as per the averment of the company petition, para 3 of the company petition, converted into a limited company, was Rs. 40,00,000 divided into 40,000 equity shares of Rs. 100 each. An order for supply of 20,387 HDPE circular woven bags at the rate of Rs. 4.20 per bag was placed by the aforesaid company on January 10, 1986, for a price of Rs. 85,625.40 and out of the aforesaid amount, Rs. 30,000 was paid and now a sum of Rs. 55,625.40 is said to be due along with interest. The case of the petitioner is that despite a statutory notice under Section 434 of the Companies Act, 1956 (hereinafter referred to as 'the Act'), the payment has not been made and a dispute has been raised in respect of the quality of the goods, which dispute is not said to be bona fide.

(2.) IT appears that it is not for the first time that the dispute has been raised in respect of the quality but under letter dated June 19, 1987 (Annexure VI), which has been filed by the petitioner, it was intimated to the petitioner that the respondent -company have never refused to make payment but it raised a dispute regarding the quality and quantity. Further, it appears from the letter/reply to the notice that a reference has been made therein to the discussion earlier had with the Executive Director, Shri A.K. Sureka, regarding the quality and quantity. The consignment said to have been received in a damaged condition was brought to the knowledge of the petitioner and, thereafter, it is given out that the petitioner assured of giving quality and quantity discounts and phase payment of the outstanding. I am of the opinion that a bona fide dispute has been raised and it cannot be said that the respondent -company is expected to pay the dues. The winding -up proceedings cannot be and are not a substitute for a remedy by way of a suit which the petitioner has and can always file for recovery of the amount.