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In Re: T.P. Shau and Sons Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKolkata High Court
Decided On
Case NumberCompany Petition No. 1 of 1980
Judge
Reported in[1982]52CompCas182(Cal)
ActsCompanies Act, 1956 - Section 434
AppellantIn Re: T.P. Shau and Sons Pvt. Ltd.
Advocates:Hirak Mitter, Adv. for the petitioning creditor;Sunrit Deb, Adv. for the company
DispositionPetition allowed
Cases ReferredRamashankar Prosad v. Sindhri Iron Foundry P. Ltd.
Excerpt:
- .....out of place and highly improbable and could not have been in existence earlier. the sending of a letter by certificate of posting is commented upon in the well-known decision of the appeal court in ramashankar prosad v. sindhri iron foundry p. ltd., : air1966cal512 . in these circumstances, i am unable to accept the contention of the company and i hold that there is no bona fide dispute or at least any dispute raised in good faith, and the company is unable to pay its debt. therefore, at this stage it cannot be said that the winding-up petition is an abuse of the process of the court. only raising a dispute which is not bona fide, a debt cannot become a disputed debt.8. in the result, the winding-up petition is admitted. it is to be advertised once in statesman, once in basumati and.....
Judgment:

S.K. Roy Chowdhury, J.

1. This is a winding-up petition which was presented on the 7th of January, 1980, and on the returnable date notice was directed to be served on the company along with a copy of the petition. The company appeared and took leave to file, an affidavit to show cause why the winding-up petition should not be admitted. The petitioning creditor also took leave to file an affidavit-in-reply.

2. The petitioning-creditor's claim arises out of sale of C. I. Scrap (Skull) at agreed rate to the company which was received by the company on the 23rd of April, 1979, and the petitioning creditor submitted its bill on the 23rd of April, 1979, for the sum of Rs. 10,831,22. The said bill was accepted without any objection and the company also issued a receipted challan and weighment certificate in respect of the said goods and accepted the bill of the petitioning-creditor. Copies of the bill, the . weighment certificate and receipted challan are annexed to the petition and the originals were produced at the time of hearing before me. It is alleged by the petitioning-creditor that objection was never raised in respect of the said goods or the goods received by the company and in fact the petitioning-creditor's representative called on the company for payment of the bill on 5th of May, 1979, and the petitioning creditor's representative was requested to call for payment from time to time. The bill-cover was also produced from which it appears that various endorsements showing the dates on which the bill was presented for payment and the same was returned for re-presentation as would appear from the endorsement copy, which is at p. 10 of the petition, which appears as follows :

' Please call for payment on 5-5-1979, 1-6-1979, 4-6-1979, 8-6-1979, 11-6-1979, 21-6-1979, 23-6-1979 and 20-7-1979.'

3. Therefore, it is quite clear that the goods were duly received by the company and the bill was made at the agreed rate. The weighment certificate, which is dated 21st of April, 1979, also shows that it is checked by somebody, which the petitioning-creditor states to be the representative of the company. Now, the goods which were sold and delivered by the petitioning-creditor to the company is cast iron skull. As the payments were not received injspite of repeated demands, the petitioning-creditor duly served a statutory notice dated the 22nd of August, 1979, under Section 434 of the Companies Act, 1956, for payment of the price of the said goods at Rs. 10,831 together with interest thereon. It now appears that the company received the said statutory notice on the 27th of August, 1979, and the company with a view to raise a dispute has caused a letter dated the 25th of August, 1979, which strangely appears to be a public holiday sent by registered post on the 27th of August, 1979, to the petitioning-creditor alleging rejection of the goods and on the ground that the goods were not C.I. Scarp (Skull) but slags of furnace. The said letter also refers to an alleged letter of the company dated 24th of April, 1979, which is now alleged to have been sent to the petitioning-creditor under certificate of posting wherein it is alleged that the goods were not according to specification but absolutely below standard and are nothing but slags of furnace and the petitioning-creditor was alleged to have been asked to remove the said goods.

4. Now, the whole question in this matter appears to be as to whether the said letter could be in these circumstances a genuine letter or a letter brought into existence only to raise a dispute, if possible, at the hearing of this present application. It also appears from the endorsement on the record of this application that the petitioning-creditor could not serve the company at the initial stage and thereafter the company matter appeared on the 1st of February, 1980, and on the ground of non-service of the petition, the company took extension of time to file opposition. In this background the matter has to be examined whether the company has raised any bone fide dispute.

5. Mr. Hirak Mitter, appearing for the petitioning-creditor, submitted, after drawing my attention to the petition and its annexure and also the affidavit-in-reply and the annexure thereto, that it appears that the company is in the habit of disputing the claims of creditors and in fact as there was a previous winding-up petition against the company by one Govindram Shew Bhagaban where the claim of the petitioning-creditor was initially disputed but subsequently an order was made for payment and, therefore, the company made the payments in terms of the said order after various defaults. Be that as it may, Mr. Mitter quite rightly submitted that there is no dispute whatsoever in the present application and the company has manufactured documents alleged to have been sent tinder certificate of posting being the alleged letter dated the 24th of April, 1979, that is, the next day after receiving the said goods. The said certificate of posting cannot be in the facts and circumstances of the case a genuine document as, having regard to the bills and the presentation of the same several times for payment and the signed challan and the weighment certificate, the said letter is highly improbable and must be held to be a document brought into existence with a view to raise a dispute or create a cloud on the admitted debt due to the petitioning-creditor. Mr. Mitter also rightly submitted that after receipt of the statutory notice served on behalf of the petitioning-creditor through its advocate-on-record, which was received by the company on the 27th of August, 1979, a back-dated letter dated the 25th of August, 1979, was sent by registered post on the very same day of receipt of the statutory notice by the company, that is, 27th of August, 1979, by registered post with a view to raise a dispute referring to the said manufactured document dated the 24th April, 1979. It also appears that 25th of August, 1979, is a public holiday and the petitioning-creditor's claim is sought to be disputed not in good faith but by a manufactured document and alleging that the goods were not according to specification. Therefore, Mr. Mitter rightly submitted that the present winding-up petition cannot be said to be an abuse of the process of the court and the company must be held to be unable to pay its debt as it has not raised any bona fide dispute to the claim of the peti-tioning-creditor and there is no substance or merit in its defence either in law or in fact.

6. Mr. Sunrit Deb, appearing for the company, submitted that the goods were not according to the contracted quality, as the petitioning-creditor had to supply C.I. Small Scrap (Skull), and instead of that the petitioning-creditor supplied slags of furnaces. He also referred to the alleged letter dated the 23rd of April, 1979, and also the registered letter dated the 25th of August, 1979, but, admittedly, sent by registered post on the 27th of August, 1979, and submitted that the goods were rejected and the petitioning-creditor had failed to take back the said goods. He also sought to dispute the endorsement on the weighment certificate as that of the representative of the company. Therefore, he submitted that the company has raised a bona fide dispute to the claim of the petitioning-creditor and the winding-up petition is an abuse of the process of the court and should be dismissed.

7. Taking the matter as a whole and from the conduct of the company I am satisfied that the company is trying to raise a frivolous, false and fictitious dispute and trying to create confusion. The goods were accepted by the company without any objection as would appear from the challan, weighment certificate and the bills and the bill-cover endorsed for various dates to call for payment. There is no difference in the description of the goods by the petitioning-creditor. and the company ; in fact, the company never raised any objection and had there been any objection it would not have received the goods with a clean challan and endorsed the weighment certificate. It never raised any objection to the bill at any point of time which was presented on several dates for payment since the bill was made out and the various dates were given by the company asking the petition-ing-creditor's representative to call for payment as would appear from the endorsement on the said bill-cover which was produced before me at the time of hearing. Only after the statutory notice was served, the company has manufactured a document dated the 24th of April, 1979, alleged to have been sent under certificate of posting and sent the registered letter back dated the 25th of August, 1979, on the 27th of August, 1979, only to amuse itself and weave a cobweb. In these circumstances, I have no doubt in my mind that the said alleged letter dated the 24th of April, 1979, has been manufactured and also the certificate of posting, which is not a very difficult thing to obtain if one wants to create an evidence of pending a letter. Apart from that it appears that 25th of August, 1979, Was a public holiday but Mr. Deb made a futile attempt to submit that this being a private limited company it also worked on the public holiday and wrote the said letter but eould not be sent as 25th and 26th of August, 1939. were holidays and, therefore, it was sent on 27th of August, 1979, by registered post. In any event, the said letter dated the 24th of April, 1979, seems to be out of place and highly improbable and could not have been in existence earlier. The sending of a letter by certificate of posting is commented upon in the well-known decision of the appeal court in Ramashankar Prosad v. Sindhri Iron Foundry P. Ltd., : AIR1966Cal512 . In these circumstances, I am unable to accept the contention of the company and I hold that there is no bona fide dispute or at least any dispute raised in good faith, and the company is unable to pay its debt. Therefore, at this stage it cannot be said that the winding-up petition is an abuse of the process of the court. Only raising a dispute which is not bona fide, a debt cannot become a disputed debt.

8. In the result, the winding-up petition is admitted. It is to be advertised once in Statesman, once in Basumati and once in Calcutta Gazette but not to be published before 31st of March, 1980. If the company pays the said sum of Rs. 10,831.22 together with interest thereon at the rate of 9% per annum from 23rd of April, 1979, until payment and an assessed cost of Rs. 510 on or before 31st of March, 1980, the winding-up petition would remain permanently stayed and compliance with Rule 28 of the Companies (Court) Rules, 1959, would be dispensed with. In default of payment the stay will stand vacated and the winding-up petition to be advertised as directed and to appear in the list on the 12th of May, 1980.


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