J. K. Mehra. J. (Oral)

( 1 ). This petition for winding up has been filed on the basis of the claims which the petitioner company has against the respondent company for the price of the goods sold and neither to it, the petitioner used to procure the cole against payment from the collieries on the permits issued in favour of the respondent company and supply that coal to the respondent. In the year 1983 the respondent company ran into thing financial difficulties and its factory was closed our the petitioner on the date of the closure of the factory had to recover from the Respondent a sum. of Rs. 1,94,487,70 whereon the petitioner had claimed interest @ 22% per annum which till 31st March 1986 came to Rs, 98,328. 58p. Before the closure of the factory the petitioner approached the respondent for the payment of its use and as a consequence of certain telephonic discussions the respondent wrote to the petitioner on 2nd March 1984 reading as under:-

"this refers to our Today s telephonic talk regarding payment of coal duesofaboutrs. 2. 301acs. First of all, we are extremely sorry for the delay in payment caused due to some unavoidable circumstances at our end resulting in blockage of funds. However, we appreciate your co-operation all along and assure you that we would be able to make payment of your dues by the end of March 84 or earlier if possible. Therefore, we request you to please bear with us for this period and oblige. "

( 2 ). Subsequent thereto the respondent again wrote to the petitioner on 22nd June, 1984, a copy of the said letter is annexure d to the petition offering to pay the outstanding amount of the petitioner amounting to Rs-2. 21 lacs plus interest, by paying Rs. 20,000. 00 initially on 30th June, 1984 and thereafter Rs. 25,000. 00 every fortnight. But no payment was made. This letter was followed by a letter from the petitioner of 29th June 1985 where with copies of the ledger account for the years 1983-84 and 1984-85 upto 21st June 1985 were sent to the respondent. The petitioner further offered in view of the respondent s closed operation to take back the coal. This offer of return of coal was apparently accepted by the respondent vide its letter of July 2,1985. When the petitioner attempted to remove the coal tie was not permitted to do so and this fact was duly communicated to the respondent vide petitioner s letter dated 11th July, 1985 wherein it is communicated that the Collector of Sehore did not allow lifting of the coal from the respondent s Mills Coal Yard. Thus the respondent neither paid for coal nor could return it to the petitioner. The petitioner again wrote on 30th July, 1985 calling upon the respondent to make the payment. This letter was duly acknowledged by the respondent vide its letter of 3rd August, 1985 wherein they once again expressed their helplessness and pointed out. once the mill Reopens and starts functioning, action will be taken to send you payment. Kindly bear with us till then Following this a notice under Section 434 of the Companies Act was sent by the petitioner respondent on 29th August, 1986. No payment was made in response to the said notice in fact the respondent took a complete summersault and for the first time the claim in the petition was disputed in the reply to the notice vide letter of repondent s lawyer dated 24th September, 1986.

( 3 ). Having thus failed to recover its dues the petitioner filed the present petition for winding upon 16th February, 1987. After the winding up petition had been filed in this Court which has been pending for quite some time, I am told that the petitioner has also instituted a civil suit being Suit No. 1357/88 filed in May, 1988 with a view to save the claim getting time barred. The petition has been resisted mainly on two grounds, firstly, that making of the offer for the return of the goods and its acceptance by the respondent amounts to novation of the contract and that there is no liability to make payment for the goods the

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