Karnataka High Court
Rainbow Enterprises vs India Brewery And Distillery Ltd. on 27 August, 1993
Equivalent citations: [1995]82COMPCAS74A(KAR)
JUDGMENT S. Rajendra Babu, J.
1. The petitioner is seeking winding up of the respondent-company principal under section 433(e) of the Companies Act. 1956. A statutory notice was issued by the petitioner on October 28, 1991, to the effect that the petitioner-company has been supplying packing materials such as CC boxes, etc., for a long time and has also been receiving payments therefore; there were certain outstanding dues to be paid and a statement of account was prepared on December 31, 1990, and was sent to the respondent requesting it to make the payment immediately; the amount claimed therein was in a sum of Rs. 1,50,575.87; since there was no response to that letter, another letter was sent requesting to settle the accounts as on July 31, 1991, within two weeks; the amount claimed therein was Rs. 1,71,656.49, and barring some small amounts outstanding, the dues were not paid by the respondent. The statutory notice was issued as contemplated under section 433(e), read with section 434(1)(a) of the Act calling upon the respondent to make payment in a sum of Rs. 88,872.92, failing which action would be taken under the provisions of the Act.
2. The respondent-company replied to the said notice stating that the goods supplied to them were of sub-standard quality and there were bona fide disputes between them thereto and denied the claim made by he petitioner. It is, thereafter, that the petitioner has presented this petition.
3. Before the matter was admitted, this court directed issued of notice to the respondent. The petitioner had reiterated the claims made in the statutory notice in this petition. The respondent raised the following objections : (i) that there is a price differentiation in the invoice as per the letter dated August 8, 1990, vide Invoices Nos. 79 and 80, dated July 20, 1990; (ii) supply of 1080 sets of 750 ml. plain Cc boxes in red colour is not in conformity with their order of blue colour; (iii) that for want of 331 sets of 750 ml. plain CC boxes in blue colour, the supply was made in black colour; (iv) that supply of 320 sets of 375 ml. plain CC boxes is of low bursting strength. In support of these objections, the respondent has also produced certain correspondence having been made with the petitioner on different dates and they are all produced as annexures to the statement of objections. Learned counsel for the petitioner, however, submitted that the goods had not been rejected outright, but they had been accepted and on the other hand, they had also been utilised. It is only in respect of those goods that the petitioner is making a claim and the liability in that regard is still due.
4. This court in Hegde and Golay Ltd. v. State Bank of India, , has explained the scope of a petition arising under section 433(e) of the Companies Act. It was stated therein that whenever a bona fide dispute arises between the parties in relation to a debt due on the basis of which the petition under section 433(e) is filed, the debt must be established and the liability is still due and their is no valid defence to the claim made by the petitioner.
5. In the present case in respect of the claim made by the petitioner, the respondent has raised several objects which a referred to earlier and these objections had been raised even long before the demand for payment was made by the petitioner and therefor the defence to the liability alleged against the respondent by the petitioner cannot be brushed aside as not bona fide. In that view of the matter, I do not think that any case is made out for admission of this petition. The petition is, therefore, rejected.