9911796707
TMI Blog1999 (7) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners contend that they had supplied a total of 1,81,650 empty bottles to the respondents as per the details set out in the petition. It is their case that the respondents have made payment for 84,770 bottles and that the payment for the remaining part of the consignment is outstanding. The usual averments have been made that despite demands, etc., the respondents have failed and neglected to make the payment and, therefore, after serving a statutory notice the present petition has been filed. The respondents have contested the petition. They have taken up the plea which is really undisputed, that the order was placed for 60,000 bottles and that the respondents kept supplying more quantities which are in excess of the contracted c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were not restricted to 60,000 but were issued for the full quantity of 1,81,650. Respondents learned advocate clarifies that since the bottles had been supplied at a concessional rate of tax and since the request came from the petitioners to issue the C Forms, these were issued as per their request in order to facilitate the completion of the assessment and it is her contention that this gesture cannot again fasten liability to pay as far as the respondents are concerned. On this crucial aspect of the transaction the petitioners learned counsel vehemently submitted that the acceptance of the consignments, the assurance in writing that the payments would be made when the bottles are utilised and lastly issuance of the C Forms is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial and that consequently, no reference to a civil court is warranted. 5. The respondents learned counsel has drawn my attention to a decision of the Supreme Court reported in A.N. Ray v. D.G. Palekar, AIR 1971SC 2600, wherein the Supreme Court has laid emphasis on the well-known principle that where a bona fide dispute is raised, the Court should refuse to entertain the winding up petition. The same view has been expounded in a decision of this Court in T. Srinivas v. Fleming A.P. (P.) Ltd. ILR 1987 Kar. 3063. In that case, the learned Judge has pointed out that one more ingredient is required to be taken into consideration while assessing whether the dispute is bona fide or not, namely, the question as to whether it appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat really arises is as to whether in cases that can be resolved through a summary evaluation or enquiry, the Company Court is obliged to refuse to entertain a winding up petition and the answer to this last question is in the negative. Undoubtedly, each petition which is necessarily based on different sets of facts would provide the individual answers regarding the maintainability even when this test is applied. Above all, the time has now come for the courts to prune the length and course of litigations and to discontinue any hypertechnical approach of redirecting proceedings from one judicial forum to another, which is what sends cases into unending orbit. 7. Coming to the facts of the present case, I do concede that the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity. This being the position, I fail to understand how and under what circumstances in law the liability to pay can be disputed. Unless there is a situation whereby this aspect is required to be resolved through a trial, it cannot be contended that a reference to the civil court becomes necessary. 8. Even in the decision referred to by the respondents learned counsel, there is a very clear reference to the fact that the Company Court is required to do an assessment of the nature of the defence pleaded for purposes of deciding as to how valid that defence is and whether prima facie it appears plausible and one which merits serious consideration. If on an examination of the facts and the application of law, there does not appear to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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