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Smt. Madan Debi Kundalia Vs. Alpine Dairy Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKolkata High Court
Decided On
Case NumberCompany Petition No. 28 of 1980
Judge
Reported in[1983]54CompCas41(Cal)
ActsCompanies (Court) Rules, 1959 - Rule 28
AppellantSmt. Madan Debi Kundalia
RespondentAlpine Dairy Ltd.
Appellant AdvocateS.K. Kapoor and ;M.L. Jain, Advs.
Respondent AdvocateP.C. Sen, Adv.
Excerpt:
- .....on behalf of the company on the 19th of february, 1980. along with the said affidavit, an alleged copy of the letter dated 13th of february, 1978, is annexed which is purported to record the agreement between the parties for the supply of a compressor and in the copy which is annexed there is nothing showing the receipt of the said letter by the petitioning-creditor and at the time of hearing, a copy was produced with an endorsement of one mr. bhati, who was the sales manager of the petitioning-creditor previously, but has left her a long time back and appears to have endorsed in the said copy the receipt of the same wrongly describing the name of the petitioning-creditor's firm and, on the face of it, it appears to be highly improbable, and a manufactured document on which the.....
Judgment:

Salil Kumar Roy Chowdhury, J.

1. This is a winding-up petition presented on the 24th of January, 1980, and on the returnable date notice was directed to be served on the company to show cause why the winding-up petition should not be admitted. Thereafter, directions for filing affidavits were given. The company filed an affidavit and the petitioning-creditor also filed an affidavit-in-reply thereto.

2. The petitioning-creditors' claim is very simple and straight-forward for the price of goods sold and delivered pursuant to the orders placed by the company between February, 1978, to May, 1978. The petitioning-creditor has disclosed the bills and the receipted challans for such supplies and also various demand letters which were not replied to and ultimately, when the statutory notice was served through the advocate of the petitioning-creditor, being 7th of December, 1979, and after the presentation of the petition on the 24th of January, 1980, the alleged reply to the statutory notice dated 17th of January, 1980, was sent to the petitioning-creditors' advocate where for the first time certain disputes were sought to be raised without any reference to an alleged contract dated 13th of February, 1978, in any way whatsoever. The said reply to the statutory notice is annexe to the affidavit of Pradyut Kumar Banerjee, a director of the company, who has affirmed the affidavit on behalf of the company on the 19th of February, 1980. Along with the said affidavit, an alleged copy of the letter dated 13th of February, 1978, is annexed which is purported to record the agreement between the parties for the supply of a compressor and in the copy which is annexed there is nothing showing the receipt of the said letter by the petitioning-creditor and at the time of hearing, a copy was produced with an endorsement of one Mr. Bhati, who was the sales manager of the petitioning-creditor previously, but has left her a long time back and appears to have endorsed in the said copy the receipt of the same wrongly describing the name of the petitioning-creditor's firm and, on the face of it, it appears to be highly improbable, and a manufactured document on which the endorsement of the said Mr. Bhati was procured subsequent to the present application being moved. The petitioning-creditor being called upon to produce the original bill cover and challans, to which there is no serious denial but only allegations in the nature to raise only some suspicion and doubt. But, after looking into the documents that the same were issued by the defendant company in the usual course of its business, I am satisfied that the petitioning-creditor has duly supplied the goods to the defendant company which has been received by the company and the petitioning-creditor has also submitted the original bills with the receipted challans to the company and the bill covers show various bills which have been received by the company. The company's affidavit, particularly the allegations in para. 19, making highly defamatory allegations against the petitioner of forgery, dishonesty and commercial immorality, appears to, have been verified, as information received from Mr. Bhati, the Ex-Sales Manager of the petitioning-creditor firm, itself shows that the company's director, the said Mr, Pradyut Banerjee, is not only reckless but has no respect for the court and has procured the Ex-Sales Manager of the petitioning-creditor firm to create a forged document, being dated 13th of February, 1978, and to make highly defamatory statements in the affidavit as stated in para. 19 of the petition. I have no hesitation in holding that the company is a highly dishonest company which is lacking in commercial morality and after the present winding-up petition has been filed is trying to create documents and make reckless and defamatory allegations against the petitioning-creditor which are not only highly improbable but also unacceptable to any court of law. It has been made only to weave a cobweb and create a cloud as to the main issue, if possible, by raising suspicion and surmise in the mind of the court.

3. Mr. S.K. Kapoor, appearing with Mr. M.L. Jain, for the petitioning-creditor placed all the necessary documents and produced the original receipted challans and the bill cover showing the receipt of the bills and, in my view, has clearly proved beyond doubt the legitimate claim of the petitioning-creditor and established the absurdity of the nature of defence sought to be raised from the Bar by creating documents after the presentation of the winding-up petition by the petitioning-creditor.

4. Mr. P.C. Sen, appearing for the company, submitted that the petitioning-creditor has suppressed the alleged contract dated 13th of February,1978, and he also referred to the xerox copy of the receipt for Rs. 15,000 dated 14th of February, 1978, copy of which is annexed to the affidavit-in-opposition of the said Mr. Pradyut Kumar Banerjee affirmed on the 19th of February, 1980, and produced the original receipt which has been duly, receipted at the back by the petition ing-creditor and submitted that the said Rs. 15,000 represented the advance towards Bittzer Compressor (complete) with a condenser, oil separator, pipe and fittings, etc., and, therefore, the petitioning-creditor is guilty of suppression of facts and trying to extort money by supplying a different make of compressor and also is guilty of similar acts with other customers as alleged in para. 19 of the said affidavit of Mr. Pradyut Kumar Banerjee, which is based on the information received from the Ex-Sales Manager, Mr. Bhati, as hereinbefore stated. Mr. Sen submitted that the bill for Rs. 6,000 odd, which has been disclosed by the petitioning-creditor, is for Freezking Compressor and, therefore, the petitioning-creditor's claim is bona fide disputed and the same being false and fabricated, in the circumstances, the winding-up petition should not be admitted.

5. Mr. Kapoor, in reply, rightly pointed out that the alleged letter dated February 13, 1978, a copy of which is annexed to the said affidavit-in-opposition filed on behalf of the company does not contain the endorsement of Mr. Bhati but the copy which was produced in court appears to contain a recent endorsement of Mr. Bhati with the wrong name of the petitioning-creditor's firm. He further submitted that the receipt for Rs. 15,000 is admitted, but there is no reference to the alleged agreement dated February 13, 1978. Therefore, the said alleged document dated February13, 1978, has been brought into existence for the purpose of creating confusion and doubt in the mind of the court and weave a cobweb, if possible, in respect of the clear and specific claim of the petitioning-creditor. Further, there was no reply to the statutory notice by the company till the present winding-up petition was filed as hereinbefore stated. The company is trying to dispute the claim of the petitioning-creditor not in good faith and raising a highly improbable story. Therefore, Mr. Kapoor submitted that in this case it cannot be said that the present winding-up petition is an abuse of the process of the court.

6. After a careful consideration of all the documents and the contentions of both the parties, I am of the view that the company is now in the hands of dishonest persons who lack in commercial morality and tried to confuse the court by raising highly improbable and false pleas by setting up a document which, on the face of it, appears to be a manufactured document being the alleged letter dated February 13, 1978. Firstly, the said letter is not referred to in the said admitted receipt dated February14, 1978, as, had it been a contract in existence as now alleged by thecompany, it must have been referred in the said receipt. Secondly, the copy of the letter annexed to the affidavit-in-opposition does hot bear the endorsement by Mr. Bhati, the Ex-Sales Manager of the petitioning-creditor, whereas the copy produced in court at the time of hearing appears to bear a recent endorsement with the name of the petitioning creditor's firm wrongly written. Therefore, the said letter is highly improbable and must be held to be not a genuine document. .

7. The case sought to be made out by the company in defence that the petitioning-creditor did not supply the said Bittzer Compressor but supplied a defective Freezking Compressor appears to be absurd and highly improbable from the documents disclosed by the petitioning-creditor. The challans and the receipts of the bills are not seriously disputed, save and except some doubt as to that they might have been signed by the employees of the company, but that those goods are not received, or in relation to Freezking Compressor, is also not acceptable, as, for a contract of Rs. 25,000, no one is expected to supply goods worth about Rs. 53,000 odd. Therefore, it is quite clear that the company is trying to weave a cobweb as it is now in the hands of a new management which is making an attempt to dispute a bona fide claim of the petitioning-creditor, if possible. It cannot be ignored that there arc several winding-up petitions against the company which after some time the company had to settle by taking time and by making payment by instalments. But, in this case, it seems to me that the company has become too daring and tried to weave a cobweb and amuse itself by eminent lawyers by taking advantage of the credit given by the petitioning-creditor and also making use of an ex-employee of the petitioning-creditor for manufacturing documents. In these circumstances, I am bound to hold that the winding-up petition is not an abuse of the process of the court and the company is unable to pay its debt and has not raised any bona fide dispute to the claim of the petitioning-creditor and there is no substance in the defence sought to be raised either in law or in fact.

8. In the result, I am making the following order :

The winding-up petition is admitted. There will be an advertisement once in Statesman, once in Basumati and once in Calcutta Gazette but not to be published before April 15, 1981. If the company pays off or settles the claim of the petitioning-creditor together with an assessed cost of 30 G.Ms, the winding-up petition would remain permanently stayed and compliance with Rule 28 of the Companies (Court) Rules, 1959, will be dispensed with. In default, the winding-up petition will be advertised as directed and the same would appear in list on June 8, 1981.


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