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In The Matter Of : Amit Polyseats Ltd - COMPANY PETITION No. 16 of 2005  RD-AH 17072 (3 October 2006)
Court No. 30
CIVIL MISC. (WINDING UP) PETITION No. 16 of 2005
Dow Chemical International Private Limited- Petitioner-company
Amit Polyseats Limited - Respondent-company
Hon'ble Sunil Ambwani, J.
1. Heard Shri Yashwant Verma for petitioner-company and Shri Manoj Mishra for respondent-company.
2. The petitioner-company supplied certain quantity of chemicals on the demand made by the respondent-company. Since no payment was made for Rs. 9, 40, 500.70 together with interest 18% per annum for the supplies made against Invoice No. 03571075 dated July 11, 2003 for Rs. 217,080.86; Invoice No. 03571104 dated July 15, 2003 for Rs. 217,025.95 and Invoice No. 03571591 dated September 4, 2003 for Rs. 506,393.89. A statutory notice was given on 1.9.2004 and served upon the respondent-company on its registered office.
3. In pursuance of the notices issued by the court, a counter affidavit of Shri S.K. Singhania, Managing Director of the respondent-company was filed. Para-3 of the counter affidavit is quoted as below:-
"3. That the petitioner and respondent have had healthy business relations since year 2000 to 2003. However, there has been roughness between the parties since the year 2003 when the respondent rejected and returned six (06) drums of Isocynate to the petitioner viz Dow Chemicals Int'l Pvt. Ltd., vide their invoice No. 172 dated 14.05.2004 for Rs. 1, 80, 855.00 through Vijay Laxmi Transport Co. vide their L.R. No. KP-1700399 dated 14.05.2004. Further an additional quantity of two (02) drums were also rejected and returned to the petitioner vide Invoice No. 175 dated 15.05.2004 for Rs. 72, 341.60 through Vijay Laxmi Transport Co vide their L.R. No. FC-210297 dated 15.05.2004."
4. In the rejoinder affidavit of Shri Gaya Prasad Singh, paragraphs 3 and 4 have been replied as follows:-
"3. That contents of paragraph nos. 3 and 4 of the counter affidavit are denied and in reply it is state das under. As has been averred in the petition for winding up material in question was supplied to the respondent company in 2003 pursuant to which material receipt confirmation was executed by it in the July 2003 and September 2003. At the time of receipt of material no complaint with regard to quality was raised or noted by the respondent. In fact, the material receipt confirmation bears the endorsement "Received in good condition...". It is stated that action of the respondent in returning the material supplied in 2003 after more than one eyar was wholly malafide and designed to avoid payments for which pressure being amounted by the petitioner on it. Between the periods when the material was delivered till May 2004 the respondent company did not write or addressed a single communication indicating to the petitioner that it had any complaint with regard to the quality of the material.
It is further relevant to mention here that the material returned to the petitioner was not even in the drums or packing material supplied by it and in fact, it had no means to confirm whether the material contained in the returned drums was actual material supplied to the respondent company. In between this period the respondent company had also not raised any dispute with regard to the price charged by the petitioner. It is further relevant to mention here that from their own letter dated 25.02.2004 the respondent had only requested the petitioner to stay its hands till last week of March 2004 when they promised that the outstanding would be settled.
From the aforesaid facts it is clear that the dispute sought to be raised is totally sham and is noteworthy of acceptance. The respondents have throughout admitted their liability and have made an unequivocal promise to settle the account of the petitioner. The subsequent return of material was only designed to avoid payments of sum due to the petitioner admittedly. In fact, when the material was returned to the petitioner it immediately vide letter dated 20th May, 2004 informed the respondent that it would not be possible for it to accept any of return of material. The present defence taken by the respondent company is thus totally false and deserves to be rejected. A copy of the letter dated 20th May 2004 is being filed herewith and is marked as Annexure RA1 to this affidavit."
5. The respondent-company has not denied the entire liability and that it had admitted a part of the amount under demand payable by the respondent-company. The court thus gave an opportunity to the respondent- company on 24.8.2006 to pay the admitted amount.
6. Shri Yashwant Verma, learned counsel for petitioner-company made a statement on 14.9.2006 that out of Rs. 9, 40, 000/-, the respondent-company has paid Rs. 7 lacks to the petitioner company. He was given a short adjournment to seek instructions whether the petitioner-company would still prefer to press the winding up petition.
7. Shri Yashwant Verma states that the defence with regard to remaining amount is not bonafide inasmuch as the quantities of chemical, which had shelf life of only six months, were returned after one year. It is contended that the respondent-company did not inform the defect in the material within reasonable time and allowed the goods to deteriorate to an extent that they were useless to the petitioner-company.
8. The admitted liability has been paid. The pleadings and submissions made by leaned counsel for parties do not go to show that defence is moonshine. The fact, whether the goods supplied, were sub-standard and they were returned in good condition, is a dispute which cannot be decided in the winding up proceeding. Further there are no effective pleading on the commercial insolvency of the respondent-company.
9. The winding up petition is accordingly dismissed with liberty to petitioner-company to pursue the remedies for recovery of the balance amount, in accordance with the law.
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