9911796707
TMI Blog1987 (6) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... cing from October 9, 16, 1985, to December 4, 1985, certain supplies of steel were effected in respect of which a sum of Rs. 13,67,697 was due and liable to be paid by the respondent-company. The same was not paid despite more than one notice issued. The petitioner was informed that goods worth about Rs. 45,405 was rejected by the respondent-company. Therefore, the petitioner is seeking payment of Rs. 13,22,292 together with interest at 18% per annum from July, 1, 1986, up to the date of petition. It is in that circumstance, for non-payment of the cost of materials supplied, the petition is filed, inter alia , contending that the respondent-company is unable to pay its debts and, therefore, it should be wound up. The petition is rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence. On October 31, 1986, this court passed an order as follows : "For enquiry regarding the alleged liability of the respondent-company and to determine whether it is a fit case for winding-up the company, call on November 20, 1986." Thereafter, P.W. 1 for the petitioner was examined and his evidence was concluded on December 4, 1986, subject to rebuttal evidence, if any. The evidence of the respondent-company was concluded by examination of two witnesses when the question of permitting the petitioner to lead rebuttal evidence on the basis of certain documents came up for consideration. At that point of time, the court suggested to the respondent-company to state categorically when their investigation into the alleged complici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a mode of realisation of the debt due to the joint family from the company, the court relied upon a passage in Palmer's Company Precedents, Part II, 1960 Edition, at page 25, to the following effect : "A winding-up petition is a perfectly proper remedy for enforcing payment of a just debt. It is the mode of execution which the court gives to a creditor against a company unable to pay its debts." Therefore, it was contended on the strength of the observation of the Supreme Court that the court must necessarily pass a winding-up order when a debt is established and a petition under section 433( e ) of the Companies Act is a proper remedy to enforce payment of that debt. One cannot dispute that as a proposition of law. What learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the debt is undisputed, the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See A Company, In re 16 SJ 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding-up order but the exact amount of the debt is disputed, the court will make a winding up order without requiring the creditor to quantify the debt precisely (See Tweeds Garages Ltd., In re [1962] Ch 406 ; 32 Comp. Cas. 795 (Ch D)). The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch assistance to the petitioner. Learned counsel for the petitioner drew the attention of the court to the scanty evidence which the respondent-company has placed before the court which does not establish non-delivery of goods. On the other hand, the documents marked clearly establish that delivery has taken place. This court should not look at the evidence from the point of view of conclusive proof of the transactions. What this court should examine is whether the evidence adduced in any way supports the assertion of the respondent-company in its objection that it has a tenable defence to dispute delivery. R.W.-1, an employee in the stores department, despite innumerable contradictions in his testimony, has stated (which was not challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready stated, viz. , that that should be done only in a civil court, where proper evidence may be led after proper issues are raised on specific pleadings. Collateral pleadings in defence of a winding up petition cannot be said to be adequate to raise those issues. It is in that view of the matter and on a correct understanding of the Supreme Court decision in Gordhandas's case, [1972] 42 Comp. Cas. 125 this court has no choice but to relegate the petitioner, at this stage itself, to the civil court for the balance of the price of the alleged undelivered supplies of steel. It is only when such a claim is made in a properly framed suit in a civil court that the respondent will have the opportunity to plead his defence in detail for est ..... X X X X Extracts X X X X X X X X Extracts X X X X
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