Valid service of statutory notices and existence of admitted liability outweigh pending counter claims in winding up petitions.

Mukundakam Sharma, J.

( 1 ) THE petitioner has filed the present company petition praying for orders of winding up of the respondent company on the ground that the respondent company is indebted to the petitioner and that it is unable to pay its debts and that it has become commercially insolvent.

( 2 ) BRIEFLY stated, the facts of the case are that the respondent purchased Cathode Ray, Tubes (picture tubes for TV sets) from the petitioner. Against the supplies made by the petitioner a sum of Rs. 1,22,45,996. 27p was due and payable by the respondent as per the reconciled balance as on 17. 3. 2000. The respondent gave a balance confirmation vide confirmation note dated 17. 3. 2000 and the said confirmation dated 17. 3. 2000 is placed with the documents filed by the petitioner. Therefore, in terms of the balance confirmation note given by the respondent debt to the aforesaid extent is admitted by the respondent.

( 3 ) AFTER the respondent gave the confirmation note dated 17. 3. 2000, the petitioner supplied further material from time to time for the total invoice value of Rs. 84,91,600. 00. As against the previous outstanding balance amount of a sum of Rs. 1,22,45,996. 00 and against further supplies made, the respondent made various payments to the petitioner totaling to a sum of Rs. 82,01,196. 00. It is also stated that these payments were made during the period between 18. 3. 2001 to 24. 10. 2001. There could be no dispute to the aforesaid position and the same is established from the records placed.

( 4 ) IT is alleged that as the aforesaid outstanding amount had become substantial the petitioner refused to supply any further material with effect from September 2000 unless past dues were cleared. On the assurance of the respondent that past dues would be cleared, the petitioner resumed supplies on 12. 11. 2000. However, supplies with effect from November 2000 were made only against the letter of credit. The petitioner endorsed the balance confirmation of outstanding amount as on 24. 10. 2001. As per the said statement a sum of Rs. 1,24,74,195. 00 was due and payable as on 24. 10. 2001. The aforesaid balance confirmation is placed on record. The respondent also issued various post dated cheques for the outstanding amount and all the aforesaid cheques when presented to the bank for encashment were dishonoured and returned with various remarks of the bank such as"exceeds arrangement", "not arranged for" and "payment stopped by the drawer". Photocopies of all the aforesaid cheques along with return memos have also been placed on record by the petitioner.

( 5 ) STATUTORY notice under Section 433 of the Companies Act was sent to the respondent on 30. 10. 2001. The said notice was received back from the post office with the remarks "addressee left". Another copy of the notice was dispatched to the respondent through registered A. D. post on 6. 11. 2001. Same also received back unserved with similar remarks. With the aforesaid statement and allegations, the present petition was filed in this Court. The respondent filed a reply to the company petition raising various defences to the aforesaid claims of the petitioner. One of the grounds that is raised is that the statutory notice under Section 433 is not served on the respondent in terms of the provisions of Section 433 and 434 of the Companies Act and, therefore, the present proceeding is not maintainable. The respondent has also claimed that it has a counter claim against the petitioner on account of over charging for which the respondent has already filed a compensation application under Section 12 B of the Monopolies and Restrictive Trade Practices Act before the MRTP Commission against four manufacturers of picture tubes including the petitioner alleging that these four manufacturers including the petitioner had formed a cartel and had caused wrongful loss to the respondent by selling the picture tubes at a higher price. Another defence that is raised is that the petitioner has

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