This Special Leave Petition is directed against the
judgment and order dated 19th July, 2007, passed by the Division Bench
of the Bombay High Court in Appeal No.382/07 arising out of Company
Petition No. 419/06, filed by the petitioner herein. Claiming to be a
Holder in Due Course of two Bills of Exchange, both dated 15th
December 2002, the petitioner filed the Company Petition No.419/06
for winding up of the respondent Company. The Bills of Exchange were
said to have been endorsed in favour of the petitioner on 28th January,
2003, and the same were payable on 15th March, 2003. The claim of the
petitioner is on the strength of the endorsement alleged to have been
made in its favour and the petitioner claims thereunder as a Holder in
Due Course. Opposing the petition, the respondent Company took the
defence that nothing was payable in respect of the said two Bills of
Exchange on account of two Credit Notes dated 27.2.2003 having been
issued by the supplier to the petitioner confirming that goods supplied
to the respondent had been received back by the supplier at Dubai and
that, consequently, nothing further was payable on the basis of the said
Bills of Exchange. It also appears that the Bills of Exchange were not
presented for a period of two years after the date of maturity and only
on 4th February, 2005, Carbon Technologies Limited issued notice
demanding payment on the basis thereof. On reply being sent on 7th
March 2005, by the respondent Company, the said notice was
withdrawn.
Subsequently, a similar notice was issued on 29th March, 2005 on
behalf of a company by the name of Buxley Industries Limited.
Pursuant to the similar reply being sent on behalf of the respondent
company, no further proceedings have been taken although the notice issued has not been withdrawn. Thereafter, on 13th February, 2006, the
present petitioner sent a notice to the respondent Company demanding
payment of the said two Bills of Exchange again indicating that it was
the Holder in Due Course of the same.
The defence taken by the respondent company indicates that there was
a genuine dispute with regard to the claim put forward by the petitioner
company. The said question has been gone into by the learned
Company Judge while dismissing the Winding Up petition by his order
dated 21st March, 2007. The same view was expressed by the Division
Bench in Appeal No.382/2007 arising out of Company Petition
No.419/2006.
Having heard learned counsel for the respective parties, we are
inclined to accept the reasoning of the Division Bench endorsing the
judgment of the learned Single Judge, since having regard to the facts,
we are also of the view that
this is a matter which is required to be heard and decided in a properly
constituted suit on account of the contentious nature of the objection
taken by the respondent on account whereof the parties have been
relegated to a suit.
The Special Leave Petition is accordingly dismissed. But this will
not prevent the petitioner company from pursuing its remedy before any
other forum, in accordance with law.
(Ganga Thakur) (Juginder Kaur)
PS to Registrar Court Master