Delhi High Court
Ashok Aggarwal vs M/S Amitex Polymers Pvt Ltd on 7 August, 2014
Author: Sanjeev Sachdeva
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 7th August, 2014
CO.PET. 53/2012
ASHOK AGGARWAL ....
PETITIONER
Through Mr. Pankaj Bhagat,
Advocate.
versus
M/S AMITEX POLYMERS PVT LTD .... RESPONDENT
Through Mr. Amit Jagga, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJEEV
SACHDEVA
SANJEEV SACHDEVA, J (ORAL)
1. Learned counsel for the Petitioner has filed in Court
today an e-mail dated 02.05.2011. Learned counsel
for the Respondent submits that the e-mail does not
support the case of the Petitioner and he has no
objection to the same being taken on record. The
said document is, accordingly, taken on record.
Registry is directed to scan and upload the said
document.
2. The Petitioner has filed the present petition for
winding up of the Respondent Company under
Section 433(e). The contention of the Petitioner is
========================================================
that the Respondent through its Director approached
the Petitioner in February 2011 for supply of various
chemicals/materials. As per the Petitioner, the
Respondent was to make payment upon receiving
necessary invoices from the Petitioner for the supply
of chemicals/materials.
3. As per the Petitioner, purchase orders dated
17.02.2011 and 25.02.2011 were placed by the
Respondent on the Petitioner. The terms of payment
agreed upon was within a period of 45-60 days. As
per the Petitioner, the Petitioner had sent/supplied
chemicals/materials as per the purchase orders to the
Respondent and necessary invoices were raised. The
invoices raised were between the period 19.02.2011
to 26.03.2011. Total invoices raised were to the tune
of Rs.7,28,072/-. As per the Petitioner, the
Respondent paid a sum of Rs.1,10,221/- thus leaving
a balance of Rs.6,17,851/-.
4. As per the Petitioner, repeated requests were made to
the Respondent to pay the balance amount.
However, the same has not been paid.
5. Learned counsel for the Petitioner relied on various
communications in the form of letters written by the
Petitioner between 24.06.2011 to 27.09.2011 asking
========================================================
for release of the balance payment. Statutory notice
dated 15.11.2011 is stated to have been sent to the
Respondent. On the failure of the Respondent to pay
the amount demanded in the statutory notice, the
Petitioner has filed the present petition. Learned
counsel for the Petitioner has relied on e-mail dated
02.05.2011 to contend that the Respondent had
acknowledged its liability and had stated that the
payments were in process.
6. The Respondent has disputed the receipt of the
statutory notice. However, the stand taken by the
Respondent is that the goods supplied by the
Petitioner were defective and, accordingly, a
Rejection Note dated 10.11.2011 was issued to the
Petitioner alongwith a Debit Note for the amount of
Rs.6,71,851/-. It is submitted that the goods were
returned to the Petitioner. The Respondent has
placed on record Rejection note, Debit note and
Carrier's Receipt showing return of 246 bags. The
Carrier's Receipt mentions the Rejection Note
number, vehicle number and the name of driver
through which the goods were sent.
7. As per the Respondent, the Rejection Note and the
goods sent along with the Carrier's Receipt have
duly been received by the Petitioner and an inward
========================================================
stamp of the Petitioner has been affixed on the same.
Learned counsel for the Respondent submits that the
Respondent had made payments even after
02.05.2011 for the goods that the Respondent had
retained and, as such, the reference in the said mail
dated 02.05.2011 was with regard to the payment for
the goods which were retained by the Respondent
and the balance goods have already been returned to
the Petitioner.
8. Learned counsel for the Respondent submits that
since the goods have been returned to the Petitioner
prior to the issuance of the statutory notice and the
receipt has been duly acknowledged by the
Petitioner, the liability of the Respondent to pay for
the said goods has ceased. Further, learned counsel
for the Respondent submits that the Petitioner has
already filed a suit for recovery, which is pending
before an appropriate Court.
9. Learned counsel for the Petitioner submits that the
documents filed by the Respondent are forged and
fabricated and even the stamp, which is stated to be
the stamp of the Petitioner, is not a stamp that is
being used by the Petitioner Company and is a
forged stamp. He further submits that the so called
Mr. Ram, who is supposed to have signed the said
========================================================
receipt, is not an employee and the signatures are
forged and fabricated and no such person by the
name of Mr. Ram is an employee or connected with
the Petitioner company. He submits that the goods
have never been received and the documents have
been fabricated for the purposes of creating a false
defence to the claim of the Petitioner.
10. The Jurisdiction of the Company Court is summary
in nature. It is a settled proposition of law that where
disputed questions of law are involved, the summary
proceedings of winding up cannot be resorted to by
the Petitioner. The winding up proceedings are not
recovery proceedings and the Powers to be exercised
by the Court under Section 434 being summary in
nature are not to be exercised where disputed
question of fact are involved requiring detailed
evidence to be led by the parties.
11. In the present case, the Respondent has set up a
defence that the goods have been returned to the
Petitioner. The Respondent has produced Rejection
Note, Debit note and Carrier's Receipt to contend
that the goods have been rejected and returned to the
Petitioner. The Rejection note and the Carrier's
Receipt contain a signature and stamp of receipt
which is claimed to be that of the Petitioner.
========================================================
Whether the documents are forged and fabricated or
whether the seal and stamp of the Petitioner is also
forged and fabricated is something that would
require a trial and adjudication. No doubt, if the said
documents are found to be forged and fabricated, the
law would take its course but there is nothing on
record to prima facie reject the same.
12. Since disputed questions of fact arise in the present
petition which would require the parties to lead
evidence on the issue of genuineness or otherwise of
the Rejection note, Debit Note and the Carrier's
Receipt, in my view, the present petition would not
be maintainable and the parties would have to prove
their respective case before a competent civil forum.
The Petitioner has already filed a suit for recovery.
These aspects would be considered by the Civil
Court before whom the said suit has been filed.
13. The Petition is accordingly dismissed as not
maintainable. The Petitioner would be at liberty to
pursue its remedy before the Civil Court.
14. Nothing stated hereinabove shall prejudice either of
the parties in the suit filed by the Petitioner against
the Respondent and the Court would consider and
decide the suit without being influenced by anything
========================================================
stated hereinabove.
15. The petition is, accordingly, disposed of leaving the
parties to bear their own costs.
SANJEEV SACHDEVA, J
AUGUST 07, 2014/st
========================================================
