9911796707
TMI Blog2000 (5) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... g heavy melting scrap from Mauritius. It was to be supplied by G. Runghen Co. The consignment was shipped and imported to India. The respondent-company entered into three High Seas Sale Contracts within the petitioner-company on 10-11-1996, for purchase of heavy melting scrap. The respondent-company was to pay for the custom duty, fine, penalty, port, wharfage, demmurage, transportation and other incidental charges. The respondent-company got cleared the above consignment and had taken all delivery of the consignment of heavy melting scrap. It utilised the raw material and availed MODVAT under rule 57 of the Central Excise Rules. 3. It is claimed that the respondent-company is liable to pay a sum of Rs. 11,49,050 to the petitioner-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or supply of the same. It was stated that the respondent is not aware of the transaction between the petitioner and Nanda Bros. 7. Principle of law in this regard is well settled. The Supreme Court in the case of Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. AIR 1971 SC 2600 categorically held that petition should only be admitted, if the defence is not likely to succeed, the Supreme Court held "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 ( See Re, A company 94 St. 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os. should be investigated. The defence cannot be outright rejected to be sham. 9. There is another way of looking at the matter. The respondent claims and asserts on the basis of the documents referred to above that it has made the payment to another person. In these circumstances, even by adjudging as to if the respondent is unable to pay the debts on commercial basis, still it cannot be held that ingredients of section 433( e ) in the facts of the present case would be satisfied. Consequently, at this stage, the petition does not require to be admitted. 10. For these reasons, the petition fails and is dismissed. It is clarified that nothing said herein should be taken as any expression of opinion on merits of the matter, if the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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