9911796707
TMI Blog1999 (2) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... lised by the company. He was to be paid remuneration for his services rendered at the rates agreed upon. The services expected to be rendered by the applicant and the percentage of remuneration payable to him by the company are reflected by the minutes of the fifth meeting of the board of directors held on 23-6-1993. The applicant rendered services and he submitted an invoice, dated 11-3-1995 claiming remuneration at Rs. 67,00,000. Subsequently, on 13-3-1995, he served the invoice along with a covering letter to the managing director of the company. The amount was not paid. Since the debt due to the applicant was not paid in spite of the notice of demand served on the company, it has to be presumed in terms of section 434(1)( a ) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture; but I am not dealing with them in extenso here. But I must notice the contention raised on behalf of the applicant that the very defence sought to be put forward by the company lacks bona fides. The necessary pleading in that behalf will be considered if necessary at the relevant stage in that context. 3. The two points that arise for consideration are whether there has been a proper demand made under his hand by the applicant requiring the company to pay the sum due to the applicant and the company has for three weeks thereafter neglected to pay the sum and whether on the materials available, it could be held that a debt was due to the applicant from the company and this was not a disputed claim which has to be adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dispute in appropriate proceedings. Whether there was any bona fide dispute with regard to any debt claimed or not will necessarily depend upon the facts and circumstances of the particular case. The disputes raised or sought to be raised may not be bona fide and would not necessarily make the debt a disputed one. Merely seeking to raise certain disputes for putting off liability for payment of the debt or creating a kind of defence to the claim, will not make the debt a disputed one and the dispute sought to be raised, if it appears to be one created or manufactured for the purpose of merely defending the proceeding, such a defence could not be considered to be bona fide and would be of no avail in resisting the winding up petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which enables me to take the view that even the handing over of invoice of this nature with a request to pay can be construed as a notice within the meaning of section 434(1)( a ). On the facts of this case, I am of the view that the applicant is not entitled to have the presumption available under section 434(1)( a ) raised in support of his claim for winding up under section 433( e ). 7. Notwithstanding the non-availability of the presumption, as observed by the Madras High Court in B. Viswanathan s case ( supra ) referred to earlier, it may be open to the applicant to prove by other evidence that the company was unable to pay its debts. No evidence is adduced in this case to enable the court to come to a finding in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the company in that behalf. A sum of Rs. 30 lakhs appears to have been paid by the company to the applicant and the stand adopted by the company is that nothing more is due to the applicant since there had been no further services rendered by the applicant calling for payment of remuneration to the applicant. Though the actual amount of liability may not be relevant and all that is needed is the showing that the liability exceeds Rs. 500, in the circumstances of the case, it cannot be said that there is no bona fide dispute between the parties whether any amount at all is due to the applicant. Under such circumstances, I think that it is inexpedient for this court in this summary proceeding to investigate that aspect and the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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