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TMI Blog2002 (11) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in National Conduits (P.) Ltd. v. S.S. Arora AIR 1968 SC 279, and to the following passage in particular. "When a petition is filed before the High Court for winding up of a company under the order of the Court, the High Court ( i ) may issue notice to the company to show case why the petition should not be admitted; ( ii ) may admit the petition and fix a date for hearing and issue a notice to the company before giving directions about advertisement of the petition; or ( iii ) may admit the petition, fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order. A petition for winding up cannot be placed for hearing before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be entertained further. 4. Mr. Ahmad has further relied on Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 (SC). Since the law on the subject has been largely distilled in Pradeshiya Industrial Investment Corpn. of Uttar Pradesh v. North India Petro-Chemical Ltd. [1994] 2 Comp. LJ 50, reference to earlier decision would not be of great advantage. I have observed in NEPC India Ltd. v. Indian Airlines Ltd. 100 (2000) Delhi Law Times 14, that in winding-up proceedings it is necessary to keep the following conditions in perspective ( 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted should appear to the Court not to be dishonest and/or a moonshine, for proceedings to continue. If there is insufficient material in favour of the petitioners, such disputes can be properly adjudicated in a regular civil suit. It is extremely helpful to draw upon the analogy of a summary suit under Order XXXVII of the Code of Civil Procedure. If the Company Court reaches the conclusion that, had it been exercising ordinary original civil jurisdiction it would have granted unconditional leave to defend, it must dismiss the winding-up petition. 5. With this prefix, I shall now revert to and consider the facts of the present case. The claim in this petition is predominantly on the payment of incentive/commission/bonus as per the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relied upon by the Respondent as clearly indicating that a special scheme had been spelt out separately to the letter dated 1-4-2001. Receipt of any such special scheme has been categorically denied. The second sentence has been relied on by the Petitioner, since it draws attention to the employment agreement, obviously for the previous year. It cannot, however, be ignored that fresh terms had been negotiated between the parties commencing 1-4-2001 and, therefore, that a special scheme for that year had also been negotiated. As mentioned above the receipt of this special scheme, along with the letter dated 1-4-2001 has been denied in these proceedings, but there is no correspondence available to show that the petitioner had remonstrated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Up to 30-6-2001 you/your department achieved only US dollars 2.62 million against the incentives kick-off level of US Dollars 2.9 million. As per policy year-end incentives if any, are payable only to those employees who are on the company rolls as of December 31st. You are therefore fully aware that no incentive commission or bonus is payable to you for the present year." 9. The paragraph clearly discloses that a bona fide dispute of this issue is in existence. According to the respondent the Bonus was not payable because the target of 85 per cent had not been achieved in the year 2001. 10. Mr. Ahmed has vociferously argued that beyond bare reference to the scheme applicable for the year 2001, this document has not seen the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to continue if it is clear that it is a pressure mode for effecting recoveries, and that if a bona fide defence has been presented, the petitioner should be relegated to other means for adjudication of his grievances. It should not be overlooked that well before the filing of the present petition the respondent-company had already released a sum of over Rs. 41 lakhs which, in its view, was the only amount payable to the petitioner. I am unable to find even a samblance of an admitted debt in this case. Incentives/bonus for the year 2000 have been calculated by the respon- dent-company and have been paid. For determining the amount payable, if any, for the year 2001, such accounting is again necessary. This can be properly and appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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