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40. After receiving letter dated 11th September, 1996, the petitioner had taken up the matter with the respondent and on 1st October, 1996 a cheque For Rs. 3,50,180 issued by the respondent in favour of the petitioner for other bills which are not subject-matter of controversy had also been cleared. The cheque for Rs. 4,77,000 against invoice Nos. 582 and 589 was also cleared on 14th October, 1996. Even at this stage, the respondent had not made any grievance in respect of the goods supplied by the petitioner. When the petitioner insisted for payment, the respondent had agreed that it had to recover a sum of Rs. 3,50,000 from one Sun Star Chemicals to which the petitioner was liable to pay Rs. 3,50,000. On 2nd January, 1997 the respondent addressed a fax message (annexure 'F' to the affidavit) to the petitioner authorising the petitioner to debit the account of Sun Star Chemicals against the amount was not payable by the respondent. If, as on that date, amount was not payable by the respondent, question of any such authorisation would not have arisen. On 20th February, 1997, when the representative of the petitioner approached the respondent for recovery of the amount, the respondent had given statement of accounts (though unsigned) of the petitioner as appearing in its books of account where even after taking credit for Rs. 3,50,000 being adjustment against Sun Star Chemicals, the respondent was shown to be owing to the petitioner a sum of Rs. 12,89,608.

44. As regards the reliance placed by the petitioner on the statement of accounts, it is submitted on behalf of the respondent-company that the statement of accounts being unsigned did not carry any weight and that in any case it was subject to the finalisation of the disputes to the satisfaction of the petitioner and the respondent with respect to the invoices which are the subject-matter of the present petition.

45. On behalf of the petitioner, its secretary A. K. Rai has filed affidavit in rejoinder dated 6th April, 1998 and additional affidavit dated 17th July, 1998 denying the allegations made in the reply affidavit about the alleged disputes as to delivery schedule, quantity and quality of goods supplied. No negotiations were ever held by the respondent-company with the petitioner as regards any failure on the part of the petitioner as to delivery schedule, quality or quantity. All the invoices were issued at the same rate and the respondent had also made payments of two invoices (Nos. 582 and 583 dated 3rd August, 1996) at the same rate. It is asserted that the respondent had issued post-dated cheques mala fide. It is also denied that there was any dispute as regards quantity, quality or time schedule and that the said alleged dispute is nothing but an afterthought.

(iii) The statement of account being unsigned does not carry any weight. However, the same was always subject to finalisation of the disputes to the satisfaction of the petitioner and the respondent with respect to the invoices which are the subject-matter of the present petition. It may also be noted that the petitioner has not approached the court with clean hands. In the petition it has been stated on oath that an amount of Rs. 16,27,422.15 is due and payable by the respondent to the petitioner. The petition is filed on or around June 1997. No credit has been given by the petitioner towards the payment/adjustment of Rs. 3,50,000 towards the alleged dues. According to the petitioner in the additional affidavit dated 17th July, 1998, the amount due to the petitioner is Rs. 12,89,608. This itself shows that the defences raised by the respondent are bona fide and that the disputes raised by the respondent are genuine and this court would not exercise its discretionary power under the provisions of the Companies Act, in favour of the petitioner.

54. Even the statement made on behalf of the petitioner-company in the affidavit dated 17th July, 1998 that the respondent-company had furnished the statement of accounts showing that an amount of Rs. 12,89,608 was due from the respondent-company to the petitioner after adjustment of Rs. 3,50,000 towards the dues of the petitioner to Sunshield Chemicals Ltd. is not disputed by the respondent-company in the affidavit dated 28th July, 1998. The mere statement in the said affidavit that the unsigned statement of accounts was subject to the finalisation of the disputes cannot be accepted because after the petitioner served notice dated 2nd December, 1996 upon the respondent-company under section 138 of the Negotiable Instruments Act, the respondent-company had replied on 9th December, 1996 raising for the first time disputes as to the quality, delivery schedule and the price of the material and thereafter the aforesaid statement of accounts was given by the respondent-company to the petitioner on 20th February, 1997. The said statement of accounts refers to the credit for Rs. 3,50,000 being adjustment against the dues payable by the petitioner to Sun Star Chemicals, which is even borne out by the fax message dated 2nd January, 1997 from the respondent-company to the petitioner authorising the petitioner to debit the account of Sun Star Chemicals against the amount payable by the respondent. If as on that date, the amount was not payable by the respondent, question of the respondent giving any such authorisation to the petitioner would not arise.