Salil K. Roy Chowdhury, J.
1. This is a winding-up petition which was presented on the 20th December, 1979. On the returnable date, a notice was directed to be served along with the copy of the petition on the company. The company appeared and took leave to file an affidavit to showCause why the winding-up petition should not be admitted and the petitioning creditor also took leave to file an affidavit in reply.
2. The petitioning-creditor's claim arises out of the price of goods sold and delivered pursuant to the various orders placed by the company bet-been 22nd September, 1977 and 25th March, 1978, for various quantities of steel sections at agreed rates. Pursuant to the said orders, the petitioning-creditor duly submitted the bills along with the receipted challans to the company-particulars of which are set out in para. 8 of the petition. It appears that the company accepted the said goods and the bills in respect of the same without any objection and the total amount of the bills is Rs. 13,044 and, as the company failed to pay the said amount of the bills, the petitioning-creditor made a claim for interest and, thereafter, served several demand notices to the company in spite of which the company failed and neglected to pay the said amount. Ultimately by a statutory notice dated 9th November, 1979, the petitioning-creditor through its advocate served on the company at its registered office claiming the said price of goods along with the interest. The company failed to pay the said amount and, after the expiry of the statutory period of the said notice, the present winding-up petition was filed as hereinbefore stated.
3. From the winding-up petition and the annexures thereto it prima facie appears that there was no dispute as to the contract between the parties and the supply of goods and the submissions of the bills by the petitioning-creditor at any stage whatsoever. It is only in the affidavit which was affirmed by one, Tapan Chatterji, on the 29th January, 1980, alleged to be the secretary of the company in para. 6, that for the first time the company admits only one of the bills dated 22nd September, 1977, admitting the supply of the said goods under the bills and the company being liable to pay the said bills to the petitioning-creditor and expresses its readiness and willingness to pay the said bills. But regarding the other bills it is alleged that on enquiry and scrutiny in the office of the respondent-company it came to the knowledge of the company that in collusion and conspiracy with some employees of the company the petitioner has committed fraud upon the company in delivering indigenous materials although the contract was for sale of foreign made materials and also inflating the amounts of the said bills and showing therein larger quantities of goods than had actually been delivered. It is also alleged that there was dishonesty on the part of the petitioner in collusion with the employees of the company for supplying cheaper indigenous materials in violation of the contractual obligations.
4. It is further alleged by the said deponent that on discovery of the said affairs the company had caused departmental enquiry to be held wherein the complicity and collusion practised by some of the employees of theCompany was conclusively proved and as a result the company took departmental action against the delinquent employees and dismissed the said persons. The deponent has named four persons in the said para. 6 as those employees and it is also alleged that the matter has been referred to the Vigilance Commission, Govt. Of West Bengal, for an enquiry into the proceedings. In short, the dispute sought to be raised is that the petitioning-creditor, in collusion and conspiracy with the employees of the company, had supplied spurious goods and is asking for the value of the goods con-tracted for without supplying the contracted goods.
5. For the petitioning-creditor Mr. Ranjan Dutt appeared and after placing the petition and the annexures thereto submitted that the story of the alleged non-supply of contracted goods is for the first time set up to cover up the inability or delay on the part of the company to pay the price of the goods sold and delivered by the petitioning-creditor to the company pursuant to the orders placed with the petitioning-creditor by the company.
6. Mr. Dutt rightly submitted that the dispute sought to be raised is not only frivolous but highly defamatory and damaging to the business reputation of the petitioner and libellous affecting the petitioning-creditor seriously in its business. There is not an iota of evidence to show that the goods were not of the contracted quality. When it was received there was no objection to the bills which were submitted and the company is now setting up collusion and conspiracy between the petitioning-creditor and its alleged employees which is not only false and frivolous but highly defamatory and showing mismanagement of a company which is a State Govt. Undertaking. If the company's employees have committed any fraud by removing the goods and replacing the same with indigenous goods that is not a ground for which the petitioning-creditor should suffer or there cannot be any liability on the part of the petitioning-creditor for such alleged acts of collusion and fraud of the company's employees. The petitioner had got nothing to do with the same.
7. In my view, after going through the papers and documents, there is no defence whatsoever to the petitioning-creditor's claim which prima facie appears to be bona fide and the company is trying to raise disputes when there is none. If the company has got delinquent employees the company will take appropriate steps against them and, in fact, it is alleged that they have taken steps for the same. But there is no material to show that the petitioning-creditor was in any way connected with the alleged fraud and collusion which are not only very serious charges but without any material particulars trying to create some suspicion and doubt in the mind of the court if possible. The said allegations appear to be not only absurd and highly improbable but if it is encouraged in this winding-up petition it will be disastrous and open the flood-gate of fraud and collusion and the companies will set up the said plea to defeat the bona fide claims of the petitioning-creditors, being the merchants and traders, of their money being the price of goods sold and delivered and it will become very easy for any company to set up collusion with the petitioner and the employees of the company in respect of supply of the goods and dispute the claim. In order to substantiate the said serious allegation, which prima facie is defamatory and injurious to the business reputation of the traders and merchants, it should not be allowed to be taken up without concrete materials on which such allegation can be framed.
8. Mr. Tapas Ch. Dutt, learned advocate appearing for the company, submitted that the fact was that the company had already dismissed the delinquent employees who committed the said fraud in collusion and conspiracy with the petitioner and the matter is before the Vigilance Commission, Govt. Of West Bengal, and, therefore, the claim of the peti-tioning-creditor should not be said to be a debt which is not disputed or there is no dispute raised to the said claim of the petitioning-creditor.
9. Considering the matter very carefully and after giving my anxious thought over the matter, I am of the view that this is a desperate attempt on the part of the company to victimise the trade creditors for fraudulent acts on the part of their employees who are employees of the Government undertaking and guilty of fraudulent and collusive acts. As I have said there is no material whatsoever, on which the said defence can be passed, save and except in the affidavit where allegations have been made against the petitioning-creditor. The said allegations should be treated, so far as the employees of the company are concerned who after receiving the goods from the petitioning-creditor have committed, some kind of fraud, if there is any, and the matter is before the Vigilance Commission, as it is alleged. So, I am not making any comment in respect of the same and that will take its own course. But I am prima facie satisfied that the winding-up petition is not an abuse of the process of the court and that the dispute sought to be raised by the company is not bona fide and there is no substance either in fact or in law in the said defence sought to be raised.
10. In that view of the matter, I am making the following order to enable the company to make payment to the petitioning-creditor if they are so advised. I am also making it clear that this order will not prejudice in any way the company to proceed against their own employees in any manner they like and it will not affect in any way the pending matter before the Vigilance Commission, Govt. Of West Bengal. In these circumstances, I must hold that prima facie the company is unable to pay its debt and, therefore, I am making the following order.
11. The winding-up petition is admitted. The same is to be advertised once in the Statesman, once in the Basumati and once in the Calcutta Gazette but not to be published before 2nd June, 1980. If the company pays off or settles the entire claim of the petitioning-creditor together with an assessed cost of 30 G. Ms. Before the said date, the winding-up petition will remain permanently stayed and compliance with Rule 28 of the Companies Court Rules will be dispensed with. In default of such payment, the same should be advertised as directed and the matter to appear in the list on 21st July, 1980.
12. All parties to act on a signed copy of the minute. The judgment and order to be drawn up expeditiously.