IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CAPP No.1 of 2011 (O&M) Date of decision: 5.7.2011 M/s Him Leather Private Ltd. -----Appellant Vs. M/s Schatstall Handlesgesellschaft Zambh -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Arun Nehra, Advocate for the appellant. --- ADARSH KUMAR GOEL, ACJ 1. This appeal has been preferred against order of learned Company Judge admitting the winding up petition against the appellant and directing publication of the order in the newspapers and official gazette. 2. Case of the respondent-petitioner was that the appellant Company was unable to pay its debt and was liable to be wound up on that ground. The respondent supplied goods to the appellant company worth more than Rs.37 lacs in the year 2000. Since payment was not made, the Company served statutory notice. The bills of exchange issued by the appellant were dishonoured. CAPP No.1 of 2011 3. The appellant contested the claim and the winding up petition by submitting that the goods were of inferior quality and that the respondent unjustifiably cancelled the contract for supply of goods which was a valid defence for non-payment. After considering the rival claims, learned Company Judge did not find the defence of the appellant to be genuine. It was held:- “I have heard learned counsel for the parties and find that the stand of the respondent that there exists bona fide dispute is a smoke screen, lacks bona fide and has been made with a view to delay and defeat the legitimate claim of the petitioner. The stand of the respondent that the bills of exchange were issued before actually receiving the material is not really germane to the controversy. As per three invoices, the material was to arrive at New Delhi between 24.04.2000 and 08.05.2000. The mode of payment was documents against acceptance payable 150 days from the date of bill of lading. There is no reference of any inferior quality at any point of time in respect of the material received against three invoices in any of the communication appended by the respondent as Annexures R-3 to R-7 and for that matter in Annexures R-11 and R-12. The complaint about poor quality was firstly raised in communication dated September 15, 2000, Annexure R-13. Such complaint of poor quality stands settled with acceptance of debit note dated 19.09.2000, Annexure R-10. Once the respondent has accepted debit note in respect of lump sum weight loss on 19th September, the entire claim of the respondent in respect of alleged weight loss or quality stands settled. While 2 CAPP No.1 of 2011 addressing communication on September 25, 2000, Annexure R-14, the assertion of poor quality of the material is just as excuse. Therefore, the stand taken by the respondent in the written statement lack bona fide and is an attempt to defeat and delay the claim of the petitioner. The argument that the petitioner has not filed rejoinder to the assertion that Mr. Drik Siever visited Jalandhar and inspected poor quality of material is unwarranted. The complaint of poor quality raised in communication dated September 15, 2000 deemed to be redressed with the issuance of debit note dated 19.09.2000 and communication dated September 25, 2000. Mr. Drik Siever is stated to have visited in the end of year 1999, whereas the supplies were made in March, 2000 and debit note issued in September, 2000. I also do not find any merit in the argument that the claim of the respondent in respect of other contract is a bona fide defence for defeating the claim of the petitioner in respect of contract No. 25619. The communications produced by the respondent dated August 9, 2000 and August 14, 2000 do not reflect that the respondent has any claim against the petitioner. The claim was raised in respect of other contract for the first time in communication dated September 15, 2000. It shows that it was to avoid its liability to pay the admitted amount to the petitioner. The respondent company has raised a bogus claim against the petitioner.” 3 CAPP No.1 of 2011 4. We asked learned counsel for the appellant whether against the claim of about Rs.40 lacs the appellant was willing to pay some amount to show its bonafides, but learned counsel for the appellant fairly stated that the appellant was unable to pay any amount. 5. We have heard learned counsel for the appellant on the question whether the finding of learned Company Judge to the effect that defence of the appellant against claim for non- supply to it lacked bonafides. 6. His main contention is that the goods were inferior and a contract was unjustifiably cancelled by the respondent. In the facts and circumstances, the finding recorded by learned Company Judge is not shown in any manner to be perverse so as to call for interference by this Court. The appeal is dismissed. (ADARSH KUMAR GOEL) ACTING CHIEF JUSTICE July 05, 2011 ( AJAY KUMAR MITTAL ) ashwani JUDGE 4