1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 950 OF 2009 M/s Control Engineers .. Petitioner Versus M/s Suparna Chemicals .. Respondent Mr. Rashid Khan i/by Tasneem A. Zaidy for the Petitioner CORAM : S. J. KATHAWALLA, J. DATE : 18th March, 2010 P.C.: 1. This Company Petition is filed by the Petitioner, seeking winding up of the Respondent Company- M/s Suparna Chemicals ( “the Company”). 2. According to the Petitioner, during the year 2007-2008, the Company had placed purchase orders with the Petitioner for various articles like Electrical Panels, Capacitors, Components etc. for its Vapi and Ambarnath factories which the Petitioner supplied as per the demand of the Company. Initially the Petitioner raised invoice No. 3/07-08 dated 12 th March, 2008 for a sum of Rs.8,47,907/- and Invoice No. 4/07-08 dated 26 th March, 2008 for Rs.3,19,298/-, aggregating to Rs.11,67,255/-. A sum of Rs.10,82,000/- only was paid to the Petitioner by the Company. A 2 sum of Rs.85,255/- remained unpaid. The copies of invoices are annexed and marked as Exhibit-A and Exh.A-1 to the Petition. 3. According to the Petitioner, after delivery of further goods, Invoice No.1/08-09 dated 7 th April, 2008 for Rs.7,488/-, Invoice No. 4/08-09 dated 25 th June, 2008 for Rs.2,528/- and Invoice No. 5/08-09 dated 9 th July, 2008 for Rs.2,528/- were raised by the Petitioner and sent to the Company for payment. According to the Petitioner, a sum of Rs. 97,999/- was due and payable by the Company to the Petitioner as on 31 st March, 2009. 4. According to the Petitioner, through its letters dated 22 nd July, 2008, 5 th September, 2008, 12 th October, 2008, 14 th October, 25 th November, 2008, 4 th December, 2008, 30 th December, 2008, 16 th January,2009, 3 rd March, 2009, 26 th March, 2009 and also through its email dated 27 th March, 2009, the petitioner demanded from the Company the amounts due and payable by the Company to the Petitioner. The copies of the said letters are annexed as Exhibits C to C-8 to the Petition. The Petitioner, through its Advocate issued a statutory notice dated 24 th April, 2009 to the Company calling upon the Company to make payment to the petitioner which was outstanding since July, 2008. The Company, by its Advocate’s letter dated 20 th May, 3 2009, disputed the liability of the Company to make any payments to the Petitioner on the ground that the account of the Petitioner was fully and finally settled by payment of Rs. 10,82,000/- after adjusting and taking into account all the faulty materials supplied by the Petitioner. It is also contended that as a result of faulty supply the Company suffered humiliation and loss of good will with its customers and such damage cannot be either compensated or equated in monetary terms. 5. The Petitioner by its Advocate’s letter dated 18 th June, 2009, denied all the allegations made by the Advocate for the Company in the letter dated 20 th May, 2009 and once again called upon the Company to make the payment due and payable to the Petitioner by the Company. No response was received by the Petitioner to its Advocate’s letter 18 th June, 2009. 6. According to the Petitioner, a sum of Rs.97,999/- is due and payable by the Company to the Petitioner, as more particularly set out in the particulars of claim annexed to the petition. According to the Petitioner, the Company failed to respond to the various letters written by the Petitioner (Exh.C- to C-8) and for the first time, without giving any particulars, wrongly alleged in its advocate’s reply to the statutory notice that the amount of Rs.10,82,000/- was paid to the Petitioner in full and 4 final settlement after adjusting and taking into account all the faulty materials supplied by the Petitioner. The Petitioner has also submitted that despite service of the Petition on the Company, the Company has not filed any reply to the Company Petition nor has not come forward to oppose/defend the Company Petition. It is submitted that the Company is, therefore, unable to pay its debt and the Company Petition deserves to be admitted. 7. From the copies of letters Exh.C to C-8, annexed to the Petition, it is established that the Petitioner has repeatedly called upon the Company to pay its balance dues. However, the Company failed and neglected to respond to the said letters and for the first time, in its reply dated 20 th May, 200 to the statutory notice issued by the Advocate for the Petitioner, , the Company alleged that the amount of Rs.10,82,000/- was paid by the Company to the Petitioner in full and final settlement, after adjusting and taking into account all the faulty materials supplied by the Petitioner. The Company has not explained as to why this defence was not raised in response to the series of letters written by the Petitioner to the Company. There is not a single letter from the Company to the Petitioner complaining about any “faulty material” allegedly supplied by the Petitioner. The Company has also not filed any reply to the Company Petition nor has it come 5 froward to oppose/defend the Company Petition. In view thereof, I am satisfied that the Company has no defence to the claim raised by the Petitioner and that the defence raised by the Company in its letter dated 20 th May, 2009 is false and dishonest. The Company Petition is therefore, admitted and is made returnable on 29 th April 2010. 8. The Petition shall be advertised by the Petitioner in two local newspapers, namely “Free Press Journal”, “Maharashtra Times” and in the Maharashtra Government Gazette. The Petitioner shall, within a period of two weeks from today, deposit an amount of Rs.10,000/- with the Prothonotary and Senior Master towards the publication charges, with intimation to the Company Registrar, failing which the Petition shall stand dismissed for non-prosecution. 9. Copy of this order shall be forthwith delivered by the Petitioner to the Company at its registered address. (S. J. KATHAWALLA, J.)