9911796707
TMI Blog1978 (1) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ital of the company is Rs. 75 lakhs divided into 75,000 equity shares of Rs. 100 each. The amount of capital paid up or treated as paid up is Rs. 10,52,000 divided into 10,520 equity shares of Rs. 100 each. The objects of the company, inter alia , are to establish, develop, manage, maintain, cultivate or acquire by purchase, lease or own for the purpose of the company or any other purpose, lands, forest areas, citronella plantations, coffee estates and to manufacture, market wood products of all kinds, and so forth. "The company" is the sole proprietor of the firm styled as Messrs. Ply Boards India. On or about 16th October, 1976, it is alleged by the petitioner, there was an agreement between the petitioner and "the company" where-under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongfully claiming that your petitioner has committed breach of contract and that the company has forfeited the said sum of Rs. 10,000. Your petitioner denies and disputes the said wrongful contention on the part of the company. Your petitioner has not committed any breach of contract as wrongfully alleged or at all. It is the company which has failed and neglected to deliver the said goods within November, 1976, as agreed and specified in the contract." [Underscored by me] It appears from the petition itself as contained in para. 12 thereof that long before the date of presentation of this application, namely, July 11, 1977, "the company" had claimed that there was breach of contract by the petitioner and that the amount stood forfeited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the amount in question. In para. (3) of the affidavit-in-opposition the company has stated that on May 21, 1977, it brought an action (Money Suit No. 29 of 77 in the court of the Assistant District Judge, Dibrugarh, Assam) against the petitioner claiming a sum of Rs. 18,729.70 together with future interest or in the alternative a sum of Rs. 8,729.70 after due adjustment of the forfeited amount of Rs. 10,000 paid as advance and by way of earnest money by the petitioner. Therefore, in the instant case the sole question is whether the company should be wound up under section 433( a ) of "the Act" in view of the provisions contained in section 434(1)( a ) of the said Act. I have heard the learned counsel for the parties. I have heard as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erusal of the affidavit filed by the company I am constrained to hold that the company has a prima facie case to go to trial and the contentions are bona fide and substantial. It is settled law that "a winding-up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding-up order, but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the court. At one time petitions founded on disputed debt were directed to stand over till the debt was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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