IMPORTANT POINT
If in a case of dishonor of cheque, signature on the cheque are found to be defective, they could have been rectified and properly signed cheques could have been issued in place of them.

R.V. Easwar, J. — This is a petition filed by Alka Exim Pvt. Ltd. under Section 433(e) and (f) of the Companies Act, 1956 (hereinafter referred to as the “Act”) seeking winding-up of the respondent-company for non-payment of Rs.2,55,11,173 which includes the principal amount of Rs.2,18,43,881 and interest of Rs.36,67,292.

2. The petitioner is a private limited company carrying on business in the supply of fabrics and allied items. The respondent-company was carrying on business in fabrication/ exports. The directors of the respondent-company used to purchase fabrics on credit from the petitioner-company. The purchases so made between 17.10.2007 and 8.6.2009 amounted to Rs. 2,18,43,881/- and together with interest, the amount debited in the books of the petitioner to the account of the respondent-company came to Rs. 2,55,11,173/- as on 12.10.2009. The respondent company sought to discharge the dues to the petitioner by issue of post dated cheques but all these cheques were returned without being honoured. Therefore, a legal notice was sent by the advocate of the petitioner on 9.11.2009 threatening action against the respondent under Section 138 of the Negotiable Instruments Act, 1881 as well as Section 417/420 of the Indian Penal Code, 1860. Complaints were also filed with the Tis Hazari Courts, Delhi under Section 138 of the NI Act. In the reply to the aforesaid notice written by the respondent-company on 23.11.2009, it was pointed out that payments amounting to Rs. 1.73 crores were made in 2009 including the issue of some debit notes, that the cheques were not honoured because the mode of operation of the account was changed from single signatory to joint signatory in September, 2009 and that the respondent had requested the petitioner to return the cheques.

3. On 11.12.2009 the statutory demand notice under Section 434 (1)(a) of the Act was issued by the advocate of the petitioner to the respondent-company calling up the latter to pay the sum of Rs. 2,25,11,173/- together with interest @ 24% till date of payment along with costs of Rs. 11,000/- within a period of 21 days from the receipt of notice, failing which legal proceedings for the recovery of the amount, including winding-up proceedings were threatened to be taken. Receiving no reply to the statutory demand notice, the petitioner has filed the present petition in April, 2010.

4. In support of the winding-up petition, it is submitted on behalf of the petitioner that the respondent-company has not even complied with the order passed by this Court on 29.11.2010 in terms of Section 439A of the Act. It is submitted that the fabrics were sold on credit between October, 2007 and June, 2009 and the post dated cheques issued by the respondent were all dishonoured. It is further submitted that the debt was acknowledged by the directors of the respondent-company. It is contended that the debit notes annexed to the reply filed by the respondent-company (to the company petition) were false and no such debit notes were sent by the respondent-company. These debit notes were sought to be contrasted with the debit notes annexed as Annexure- A2 to the rejoinder, which are admitted by the petitioner. It is pointed out that the debit note placed as Annexure-A2 to the rejoinder was duly signed by a director of the respondent-company with his seal and was also taken note of in the ledger account of the respondent-company borne in the books of the petitioner whereas the debit notes attached to the reply filed by the respondent to the company petition did not bear the signature of the director along with the seal, nor did these debit notes contain any details of the fabric returned by the respondent-company, as was the case in the debit note annexed to the rejoinder. It was further pointed out that the debit note annexed to the rejoinder was supported by printed challans issued by the respondent-company containing complete details of the goods returned whereas the debit notes attached t