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TMI Blog1987 (7) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... e of certain electrical fittings and taps and shower in the house that belongs to his mother under whom respondent-company is a tenant. It is further alleged that the respondent-company paid the said charges up to February, 1984, and defaulted in payments subsequently. As a result thereof, a sum of Rs. 24,000 was due up to February, 1985. Despite a notice sent by registered post and duly served on the respondent, the amount claimed under the said bail agreement for use of electrical fittings, taps and shower has not been paid nor have the subsequent amounts due after notice, been paid. Therefore, the company which is indebted to the petitioner in not having paid the amount demanded which is in excess of Rs. 500 is liable to be wound up. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cases supporting the above view are too many to be referred to. It suffices to refer to a decision of the Supreme Court in the case of Madhusudan Gordhandas and Co. v. Madhu Woollen Industries P. Ltd. [1972] 42 Comp. Cas. 125 to which a more detailed reference will be made later in this order. The point for determination is whether the respondent-company is a debtor within the meaning of that expression and in that sense, whether the petitioner is a creditor to whom a sum of Rs. 24,000 is due as bailment charges under exhibit P-1 for the period March 1, 1984, to February 28, 1985. The oral evidence of the petitioner is highly imaginative and does not inspire the court to place any confidence on the veracity of the assertions made. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company was inducted as a tenant and during the time of such induction, bailment agreement was got executed. As the money utilised for purchase of those articles was out of the funds gifted to the petitioner by his sisters who were residing abroad and his grandparents, she says that her husband purchased the fittings at a cost of Rs. 28,000 in 1973. This statement of the gift as source of funds has come for the first time from PW 2. There was nothing in the pleading about the petitioner having made available the funds to his parents for purchase of the fittings for the use of which he is entitled to charge rent not from his parents, but from their tenants. When his father was admittedly running a nursing home, there is no indication either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in depth. The court is satisfied that the defence raised in the circumstances of the case is bona fide and likely to succeed in a civil court. If that prima facie case is found, that would constitute sufficient reason for this court to reject the petition relegating the parties to the civil court. In this connection, it is useful to extract a passage from the decision of the Supreme Court in Madhusudan Gordhandas and Co. v. Madhu Woollen Industries Pvt. Ltd. [1972] 42 Comp. Cas. 125 . The Supreme Court has observed that (at page 131): "Where 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. Where, however, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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