2016 (12) TMI 366 - HC - Companies Law

Maintainability of appeal - non admitting the liability to pay the remaining amount - winding up petition - Held that - The petition deserves to be dismissed because of the disputed questions of fact about the deliver of goods purchased by the respondent for which the Division Bench has held that if the triable issues are raised, the summary jurisdiction of the Company Court cannot be invoked in order to compel the company to pay the amount on pain of being wound up.

Summary

Issues:
Petition filed under Sections 433(e), 434(F) and 439 of the Companies Act, 1956 to wind up respondent-Company for non-payment of admitted debt.

Analysis:
The petitioner, a manufacturing and repair company, filed a petition seeking to wind up the respondent-Company for failing to pay an admitted debt related to the purchase of a transformer. The petitioner alleged that the respondent placed an order for a transformer but did not pay the full amount despite receiving advances and that the respondent disputed the delivery of the transformer. The respondent contended that it had paid a significant portion of the amount but did not receive the transformer, and therefore, refused to pay the remaining sum. The petitioner argued that the delivery was made, and the respondent's admission of part payment made them liable to pay the outstanding amount, invoking the provisions of the Companies Act.

The respondent, however, maintained that it was not liable to pay the remaining amount as the transformer was not delivered despite the advance payment. The respondent cited a Division Bench judgment to distinguish between being "unable to pay" and other scenarios like "refusing to pay" or "disputing liability to pay." The judgment emphasized that the inability to pay must arise from the solvency or financial position of the company, and winding up should not be used to enforce disputed debts.

After considering the arguments from both parties, the court opined that the petition should be dismissed due to the disputed facts regarding the delivery of the purchased goods. Citing the Division Bench judgment, the court highlighted that the summary jurisdiction of the Company Court cannot be invoked to compel payment if triable issues are raised. The court emphasized that winding up should not be used as a means to realize debts unless the company is genuinely unable to pay, as defined by the statute. As there was no evidence that the respondent-Company was unable to pay the disputed debt, the court dismissed the petition.

In conclusion, the court dismissed the petition, emphasizing that winding up should not be used to enforce disputed debts and that the company's financial position must genuinely render it unable to pay for such action to be warranted.