A company can rebut the statutory presumption of insolvency by raising a bona fide dispute. However, the defence must be clear and not confusing. The company must also provide a definite stand to support its claim being just and proper.

ASHIM KUMAR BANERJEE, ACJ.

This appeal would relate to an order refusing to admit a winding up petition filed on behalf of the appellant as against the respondents. The parties had commercial relationship under which the appellant acted as a carrier of the respondent’s products over a long period of time. The parties would say, it would be for 6-7 years. According to the appellant, they were carrying goods on behalf of the respondents hence, they were entitled to have the freight charges that the respondent company kept outstanding for a long time. The company would say, the transaction was carried on for years together. As per the agreement, the rate was to be fixed by Mr. D.P. Jajodia. The carrier did not adhere to the terms and billed at a rate far above the settled rate. Hence, the dispute.

The appellant made a claim by issuing notice of demand initially by themselves through letters dated June 28, 2013, July 17, 2013, July 29, 2013 and August 26, 2013. None of the said letters were replied to. However, we find from the letter dated July 29, 2013 there had been meetings between the respective representatives of two companies on July 9, 2013 and July 11, 2013. Despite assurance being given the dues were not forthcoming. From the said letter, we also understand, initially the appellant stopped carrying their goods on credit basis and was charging the ultimate consignee on “freight to pay” basis. Subsequently, it was also discontinued, presumably for huge outstanding. The appellant then issued a statutory notice of demand through their Advocate-On-Record vide letter dated September 2, 2013, inter alia, claiming a sum of Rs. 6.43 crores on August 24, 2013. The statutory notice of demand was also not replied to.

The appellant filed winding up petition that the company opposed by filing affidavit in opposition. The company also filed supplementary affidavit as the appellant disclosed various documents in their affidavit in reply.

On a combined reading of the pleadings, we find, the appellant would base their claim on the Statement of Accounts for the period of April 1, 2013 to August 31, 2013 appearing at pages 19-23, 2013, that would have an opening debit balance of Rs. 6,53,70,890 and closing balance of Rs. 6,37,60,841. From the statement, we find, there had been diverse payments made in between lump sum basis as well as also billed basis. However, the balance as on April 1, 2013 would almost remain the same at the end of the financial year. On the issue of fixation of rate, the appellant themselves annexed the circular dated November 23, 2009 wherein Mr. D.P. Jajodia was supposed to fix the rate. According to the appellant, the circular, although issued, was not strictly followed. The signatory to the said circular, Vedang Jajodia, also used to fix the rate as would be appearing from pages 303, 324, 361 and 368. The respondent company would say, those four e-mails referred to above, would have due approval of D.P. Jajodia and the bills pertaining to those four e-mails had already been paid. The company would dispute the outstanding, as according to them, although the appellant billed the respondent at an exorbitant rate the respondent company had verified those bills and had duly paid whatever had been found due and payable.

When the winding up petition was initially heard by the learned Single Judge, His Lordship passed an order on February 10, 2014 when His Lordship observed, the dispute would be on limited issue of fixation of rate as the factum of carriage of goods by the appellant was an admitted fact. His Lordship observed, the parties should be reconcile the accounts and submit their respective statements in Court. On a querry made by this Court, we came to know, neither of the parties preferred any appeal from the said order and acted upon the same. However, once the issue could not be finally resolved, they were permitted to take back their respective accounts. We asked Mr. Abhrajit Mitra, learned Counsel ap