9911796707
TMI Blog1997 (12) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, briefly stated, are these. The petitioner-company is carrying on the business of manufacture and sale of corrugated fibre board and boxes for the packing of horticultural produce. On the basis of supply orders placed from time to time during the year 1989-90, the petitioner-company supplied 4,15,066 cartons of corrugated fibre board valued at Rs. 69,50,350.50 to the respondent- company. The supply so made included the supply of 1806 cartons as samples, valued at Rs. 30,250.50, the agreed value per carton being Rs. 16.75. A sum of Rs. 62,30,312.75 was paid by the respondent-company as part payment towards the cost of cartons supplied. In addition another sum of Rs. 1,97,000 was paid by the respondent-company towards freight charges. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs and third parties liabilities, to the extent of Rs. 2,580 lakhs. The petitioner-company has, thus, prayed for the winding-up of the respondent-company. 5. The respondent-company resisted the petition for winding-up. It was pleaded that as against the supply order for 4.15 lakhs of cartons, the petitioner-company had supplied only 4,12,915 cartons valued at Rs. 69,16,326.25. It was averred that as per the books of account of the respondent-company, only a sum of Rs. 1,80,239.10 is payable to the petitioner-company as under: Rs. (a)Total value of 4,12,915 cartons supplied 69,16,326.25 (b)Earnest money with the respondent-company 25,000.00 Less: (a)Payment already made (including the amount adjusted by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in addition to forfeiture of the earnest money, the respondent- company has only withheld 10 per cent of the cost of such sub-standard cartons as was done in the case of other suppliers. It was also pleaded that the respondent-company has a sound financial position, since being a Government company it is being fully financed by the Government of Himachal Pradesh to meet all its financial obligations and that it is in a position to discharge all its financial obligations in accordance with law. 7. It will not be out of place to mention here that the admitted liability to the tune of Rs. 1,80,239.10 stands discharged by the respondent-company on its having deposited such amount in the Court in pursuance of the order of the Court. Such amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples 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 adduces prima facie proof of the facts on which the defence depends." (p. 131) Again in Amalgamated Commercial Traders (P.) Ltd v. A.C.K. Krishnaswami [1965] 35 Comp. Cas. 456 (SC), it has been held by the Apex Court that a winding-up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. A petition filed ostensibly for a winding-up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandal- ous abuse of the process of the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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