Inconsistent defense and afterthought to avoid payment can lead to the admission of a winding up petition for the outstanding dues.

ARIJIT BANERJEE, J.

1. This is an application under Sections 433, 434 and 439 of the Companies Act, 1956.

2. The case of the petitioner is that the company agreed to purchase and the petitioner agreed to sell Betanox-C, Ferospeed, Quenching Oil, Super Inox-2C etc at the agreed rates on the terms and condition that the company would pay the price of the goods immediately and in default the company would pay interest at the rate of 24 per cent per annum and further an open, running and continuous account would be maintained by and between the parties. Between 26th October, 2009 and 16th September, 2011 the petitioner sold and supplied goods worth Rs. 5,37,158.92 to the company which were duly accepted by the company without any objection or demur. From time to time, the company paid a sum of Rs. 4,82,565.60 in part payment of the petitioner’s dues leaving a sum of Rs. 54,493.32 outstanding. The payments were made between 10th March, 2010 and 7th July, 2012. Upon the company’s failure to pay the said outstanding amount the petitioner caused to be served on the company a notice dated 19th November, 2012 under Section 434 of the Companies Act, 1956. The company responded by its letter dated 26th December, 2012 contending that the entire materials supplied by the petitioner were rejected due to poor quality of the materials as well as non-suitability of the same. It was further alleged in the said reply that in spite of several telephonic intimations the petitioner failed and neglected to lift the rejected materials from the company’s Orissa plant and replace the same with fresh materials and in course of time the rejected materials have been fully wasted. The petitioner’s advocate wrote a letter dated 7th September, 2013 denying and disputing the contents of the company’s letter dated 26th December, 2012.

3. In the aforesaid factual matrix the instant application has been filed. The petitioner contends that the defence sought to be raised by the company is completely sham and bogus. There was never any intimation of any rejection of the goods supplied to the company by the petitioner. The company is deemed to unable to pay its debt to the petitioner and should accordingly be wound up.

4. In its affidavit in opposition and at the time of hearing the company took the same stand as it had taken in its reply to the statutory notice under Section 434 of the Companies Act. According to the company, the goods supplied were of bad quality and not suitable for the purpose required by the company.

5. The company further contended that the petitioner has not disclosed copies of the bills allegedly raised by it on the basis of which the instant application is filed. However, pursuant to leave granted by this Court the petitioner has disclosed copies of the bills, particulars whereof have been enumerated in the body of the winding up petition, by way of a supplementary affidavit. In its affidavit in reply to the supplementary affidavit, the company denies receipt of the said bills as well the authenticity thereof.

6. I have considered the rival contentions of the parties. Part payments made by the company to the petitioner as contended by the petitioner has not been denied by the company. In paragraph 8 of the winding up petition the petitioner has furnished the particulars of the part payments made by the company. In its affidavit in opposition the company has not denied or disputed such particulars. It is, thus, established that the company did make payment of Rs. 4,82,565.60 to the petitioner. Had the company rejected the goods supplied by the petitioner, there could have been no question of making such part payment. It is also not the case of the company that there was some other transaction between the parties and the payment of the said sum was made in connection with such other transaction.

7. The stand taken by the company in the reply to the statutory notice and in its affidavit in opposition is completely inconsistent with t