1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.606 OF 1998 M/s.Metal Tubes and Rolling Mills. ..Petitioner. V/s. M/s.Transpower Engineering Ltd. ..Respondent. Mr.O.S.Kutty i/b. M/s.Haresh Mehta & Co. for petitioner. None for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 22, 2008. DATE : JANUARY 22, 2008. DATE : JANUARY 22, 2008. P.C. : P.C. : P.C. : 1. None appears for the Respondent though served. No reply has been filed to counter the assertions made in the Petition. 2. In this Petition, the Petitioner is claiming an amount of Rs.9,83,543/-(Rs.Nine lakhs eighty three thousand five hundred forty three only) from the Respondent company which is given in the particulars of Claim at Exh-I. 3. The claim is arising out of goods sold and delivered by the Petitioner to the Respondent Company. Pursuant to the Orders, the Petitioner has sold and delivered "unwrought Sinc" worth 2 Rs.15,35,603/- covering under three Invoice Nos.S/27 dated 18.4.1997, S/28 dated 22.4.1997 and S/39 dated 24.4.1997 respectively. While placing the Order the Respondent Company has issued one cheque No.296636 dated 20/6/1997 drawn on State Bank of Hyderabad for Rs.15,35,603/- as advance payment, which was to be deposited only after effecting despatch of goods. After effecting dispatch of material, as instructed by the Respondent Company, the Petitioner deposited the said cheque for clearance. However, the said cheque came to be dishonoured by a Memo dated 10/11/1997 with remarks "exceeds arrangement". Upon dishonour of cheque, the Petitioner issued a Notice dated 21/11/1997 calling upon the Respondent Company to pay the said amount. However, no reply was received to the said notice. Thereafter, the Petitioner also issued another statutory notice dated 24/11/1997 under the Companies Act, 1956. Upon receipt of the said notice, the Respondent Company clearly admitted the liability. However, informed that they have already made payment on account of Rs.6,50,000/-(Rs.Six lakhs fifty thousand only) and they are also trying to clear the balance payment on priority basis(Exh.F). In the said reply, it was also assured that the Respondent Company will clear the payment by 31st January, 1998. However, the 3 Respondent Company did not adhere to their commitment. 4. Since the payment was not forthcoming, the Petitioner issued one more notice dated 17/3/1998 calling upon the Respondent Company to make payment of Rs.9,83,543/-, being the balance payment together with interest due thereon at the rate of 18% per annum. Out of Rs.9,83,543/-, the principal amount was Rs.8,85,603/- and Rs.97,940/- was towards interest at the rate of 18% calculated from 16/08/1997 to 17/03/1998. Again one more winding up notice dated 16/4/1998 was given to the Respondent. Though the Respondent Company received the notice no payment was made. Therefore, the present petition came to be filed. The said petition was admitted on 27/9/2002 by an Order passed by this Hon’ble Court. After admission of the petition, the Petitioner has published the necessary advertisement as ordered and the Affidavit in respect thereof has been filed in this Hon’ble Court. 5. Having regard to the uncontroverted position that the Petitioner sold, delivered and supplied goods to the Respondent as per the request of the Respondent; coupled with the fact that at no point 4 of time, the Respondent has raised any dispute regarding quality, quantity or price of the goods, so supplied. On the other hand, the Respondent has admitted its liability and issued cheque in the sum of Rs.15,35,603/-(Rs.Fifteen Lakhs Thirty Five thousand Six Hundred & three only), which however, was dishonoured and that the Respondent paid Rs.6,50,000/- (Rs.Six Lakhs Fifty Thousand only) out of the outstanding dues, I have no hesitation in taking the view that the Respondent has failed and neglected to pay balance principal amount of Rs.8,85,603/- (Rs.Eight lakhs eighty five thousand six hundred three only). For the time being, even if the amount demanded by the Petitioner towards interest component is to be ignored, the fact remains that the Respondent has failed and neglected to pay the outstanding dues far in excess of the statutory amount. The Respondent has not only failed to send reply to the statutory notice, but also failed to pay the amount, though admitted its liability to pay the same. It necessarily follows that the Respondent is unable to pay its debt. In the circumstances, Petition is made absolute in terms of prayer clauses (a) and (b). 6. Petition disposed off on the above terms. 5 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)