9911796707
TMI Blog2002 (9) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to be outstanding in favour of the petitioner and against the respondent (company). It is not in dispute that for the supplies made from 12-10-2000 to 27-3-2001 C Forms have been duly supplied by the company to the petitioner. It will be relevant to note that these C Forms were issued after 27-6-2001, the bulk of them being on 11-7-2001. The C Forms that had not been issued are for the last five consignments covered by invoices dated 5-4-2001, 21-5-2001, 31-5-2001, 8-6-2001 and 22-6-2001. It has been stated on behalf of the petitioner that the C Forms do not correspond exactly with the value of the invoices, since the company has carried out deductions against some invoices on account of short weighments. 2. The learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner on 5-3-2002. The learned counsel for the respondent had orally submitted that its letter dated 22-2-2002 was despatched on 23-2-2002. In view of the specific averments contained in the rejoinder to the petition, this submission on behalf of the company ought to have been substantiated by the filing of the postal receipts. The copy of the rejoinder was served on the counsel for the company on 15-7-2002. 4. The contention of Mr. Malhotra, the learned counsel appearing for the company is that there is no doubt as to its solvency. It has been strenuously contended that there has been a material concealment inasmuch as Annexure R-1 to the company s reply, being minutes of a meeting held between the parties, on 7-5-2001, has ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf ofFor on behalf of ITW Signode IndiaBhushan Steel Ltd.Strips Ltd. Sd/- N.L.N. RajuSd/- Kishi Saxena General ManagerDy. General Manager" 5. Mr. Malhotra s argument is twofold, ( a ) that if the discounts are given, no amount would be due and payable and on the contrary some amount may be claimable by the company from the petitioner; ( b ) that even if the discounts are not given, only the sum of Rs. 12,68,270.66 would be payable as per Annexure R-2 to the reply. No explanation is forthcoming as to why such a statement was not forwarded to the petitioner by the company in response to the several written communications received from it by the company. This observation also holds for the contents of the letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ( i )If there is a bona fide dispute and the defence is a substantial one, the Court will not wind-up the company. ( ii )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 it. ( iii )Where the defence of the company is in good faith and one of the substance, and the defence is likely to succeed in point of law, and the company adduces prima facie proof of the facts on which the defence depends, the petition should be rejected. ( iv )The Court may consider the wishes of creditors so long as these appear to be justified. ( v )The machinery of winding-up should not be allowed to be utilised merely as a means of realising its de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the winding-up petition. 7. The focal points of the defence appear to be predicated on the afore-mentioned minutes dated 7-5-2001. On its reading, I find that there is no ambiguity in the language and it only indicates that the company would not give any further business to the petitioner, unless there was a reduction in price. This is the only conclusion that can be drawn because of the use of the words further business and further discounts . There is also some controversy on the non-supply of the tools mentioned in the minutes. But, in my opinion, these are of little significance to the claim in the petition, since it is not a demand contemporaneous with supplies. The construction sought to be given to these minutes cannot be app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after having received the Court notice on 1-3-2002." The sequence of events indicates that the defence has been formulated after the petition was filed, and, therefore, does not attract credence. 9. Keeping all the circumstances and submissions in view, I find that no legal objection had been raised which would defeat the present petition. It has already been seen that the solvency of the company would not be relevant in the face of a resolute refusal to pay its outstanding dues. In the present case, there is a clear admission of debt in the light of the settled reconciliation statement dated 27-11-2000. When subsequent transactions are taken into consideration, the amount claimed in the petition is beyond controversy. The fact that no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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