2008 (7) TMI 570 - HC - Companies Law

Winding up Circumstances in which company may be wound up by Tribunal - Held that - In a given case, where winding up proceedings is initiated under section 433 of the Companies Act, 1956, it becomes necessary that there must be a debt and the liability should be definite. If there is any substantial defense put forth by the respondent s side, it has got to be decided by the court only on appreciation of evidence and hence no question of winding up to be ordered would arise. The petition filed by the petitioner, though ostensibly looks like a winding up petition, it is not so. This device, in the opinion of the court, is to pressurize the respondent for payment even before thrashing out the liability to be decided by the court of civil law. Under these circumstances, it is well settled that winding up petition cannot be made as a device to pressurise the respondent to make payment as per the demand made by the petitioner. Hence the learned single judge was perfectly correct in rejecting the petition.

Summary

Issues:
1. Dismissal of winding-up petition under section 433(e) read with section 434(1) and 439(2)(f) of the Companies Act, 1956.

Analysis:
The appellant, a registered partnership firm, filed a petition seeking winding up of the respondent company under the Companies Act, 1956, due to unpaid debts amounting to Rs. 2,91,450 along with interest. The respondent contended that the supplied cotton was of inferior quality, leading to a dispute regarding payments and rebates. The single judge dismissed the petition, stating the petitioner failed to establish the necessity for winding up. The appellant argued that the liability was clear from invoices and the respondent's failure to pay indicated insolvency. However, the respondent maintained there was no definite liability and substantial defenses existed. The court noted the disputed quality of goods and payments, emphasizing the need for a clear debt for winding up proceedings. It concluded that the petition seemed to pressure the respondent for payment without resolving the liability dispute through civil law, upholding the single judge's decision to dismiss the petition.

This judgment highlights the importance of establishing a clear debt and liability in winding up petitions under the Companies Act, 1956. It emphasizes the need for resolving disputes through civil law rather than using winding up petitions as a means to pressure debtors for payment. The court's decision underscores the requirement for a definite debt and the consideration of substantial defenses before ordering winding up proceedings.