The defense raised by the company in the winding-up petition was bona fide and, therefore, the petition should not have been admitted.

( 1 ) THIS is an appeal from a receiving order passed by the Company Court on the 22nd of July, 2004, whereby the respondent's petition for winding up of the appellant company was admitted and directions for advertisement were given.

( 2 ) THE statutory notice dated 31st July, 2003 had been served on the appellant company for a debt of Rs. 52. 33 lac approximately. The case of the respondent in the statutory notice as well as in the winding up petition was put very simply. According to them during the period October, 2001 and January, 2003 they had supplied the company diverse quantities of steel plates and H. R. Coils, and upon such supplies being made and received they also raised upon the company the corresponding bills from time to time, the bills representing separate supplies individually. In the petitioning creditor's chart the bills aggregate approximately rs. 5. 09 crore and they have given credit to the company for the payments made by it from time to time aggregating approximately Rs. 4. 57 crore.

( 3 ) THE petitioning creditor claimed the balance amount as price of goods sold and delivered.

( 4 ) THE company filed an affidavit-in-opposition to which a reply was used by the petitioning creditor and thereafter the company used a supplementary affidavit also. Various documents of a very important nature were annexed to the supplementary affidavit.

( 5 ) THE company made the case that the transactions were not so simply as to be called a price of goods sold and delivered situation. According to them the petitioning creditor only supplied delivery orders to the company from time to time. These delivery orders were utilised by the company for lifting the steel items from the Dankuni Steel Yard of the SAIL. The petitioning creditor enjoyed a quota of supplies from sail and they made full payment themselves to SAIL. After supplies were taken on the basis of the delivery orders, the petitioning creditor raised bills on the company adding 2% commission of theirs, which percentage was calculated both on the ex-stockyard price and the 4% sales tax added thereto. The bills raised on the company represented the aggregate amount, i. e. , the stock-yard price, the 4% sales tax and the 2% commission.

( 6 ) THE challans and the delivery orders, of which numerous copies were annexed to the supplementary affidavit of the company, show that this was actually what was happening. It was not that the petitioning creditor was itself making supplies to the company; the company was lifting the goods on its own and the petitioning creditor, so to speak, was a fully investing middleman with an agreed commission.

( 7 ) THE other significant part of the company's case was that it hardly raised any direct dispute at all to the balance amount claimed by the petitioning creditor, i. e. , Rs. 52. 33 lac. However, the company's case was that it had suffered damage because of a breach of contract made by the petitioning creditor. According to the company the petitioning creditor had agreed to supply to it during the financial year 2002-03 3000 metric tonnes of steel plates and 1800 metric tonnes of H. R. Coils. However, the full supplies were not made. More than 1500 metric tonnes of steel coils agreed to be supplied, only 443 metric tonnes were actually obtained by the company. The company claimed damages at the rate of five rupees per kilogram for the unsupplied items. Needless to mention, 1000 kilograms made one metric tonne.

( 8 ) IN the answer to the statutory notice which was given on the 16th of August, 2003 these details were not given in extenso but a reference was made by the company to a suit which it has filed more than two months before the date of the statutory notice, to be precise, on the 23rd of May, 2003, in the plaint of which the company had put forward the claim for damages as mentioned in its affidavit-in-opposition.

( 9 ) THE petitioning creditor took, in that suit, the step of praying for an extensi