9911796707
TMI Blog1992 (4) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent-company is registered under the Companies Act. The company is running the business of fabrication of bus and car bodies. The petitioner claimed to be supplying the material used for the said purpose from time to time to the respondent-company and further reproduced the accounts up to 1984-85 as brought forward in 1985-86. The confirmation of the statement of accounts by the managing director was averred to be Rs. 1,98,783.05 on April 27, 1983. The confirmation of the balance amount claimed was vaguely alleged to be Rs. 1,82,675.05 on March 31, 1985, without disclosing as to who confirmed the same. The same amount was brought forward in 1985-86. The petitioner sent a statutory notice under section 434 of the Companies Act on March 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and since there was a defect in the verification, the same was withdrawn and the period spent in prosecuting the said petition in 1987 should not be taken note of. It was further averred that the respondent-company has admitted its liability earlier as well as in the balance-sheets submitted to the Registrar as well as to the income-tax authorities. It was further averred that the name of the petitioner also figures under the heading of sundry creditors, in the balance-sheets for the years 1983-84 to 1986-87. Further, an up to date account of the petitioner was filed. It may, however, be noticed that the replication is not accompanied by any affidavit in order to support the averments made in it. On the very opening of the arguments, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by the authorised agent was denied. The company is doing its business with Government and has got a sound financial base. Further, the petition for winding up of the company being not for the benefit of all the creditors of the company cannot be treated as an ordinary suit for the recovery of the disputed amount, no order of winding up can be passed. The respondents relied upon Raghunath Son (P.) Ltd. v. Pandam Tea Co. Ltd. [1978] 48 Comp. Cas.577 (Cal. ), A.C. K. Krishnaswami v. Stressed Concrete Constructions (P.) Ltd. [1964] 34 Comp. Cas.6 (Mad.), Naveen General Store v. Stepan Chemicals Ltd. [1988] 63 Comp. Cas.147 (Punj. Har.), Sutlej Land Finance (P.) Ltd. v . Daulat Ram [1989] 66 Comp. Cas.841 (Punj. Har.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie , the defence put forth by the respondents is a bona fide one. The petitioner never even attempted to contend that the defence put forth by the respondents with respect to the debt being barred by limitation is not bona fide . Once, after recording evidence, the court comes to the conclusion that the debt is barred by limitation, the petitioner would have no right to recover the same. The petition dose not fall within the four corners of creditors whose debt is admitted as defined by the Companies Act. Without expressing my opinion as to whether the submission of the balance-sheet, though it is again disputed that the debt of the petitioner was admitted, would be again a mixed question of law and fact which cannot be dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly tenable defence. There is no gainsaying that although the petition is ostensibly for winding up the respondent-company, it is in reality an exercise to put pressure on the respondent-company to accede to the amount of debt of the petitioner and is liable to be dismissed. I am constrained to observe that in the circumstances mentioned above, the petition for winding up is a scandulous abuse of the process of court. The company has adduced prima facie proof on the admitted facts of the petition that the debt is barred by time. The company court is not meant for settling civil disputes under powers of section 433 read with section 434 of the Act because it is not a court of original jurisdiction. There is no dispute with the proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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