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TMI Blog2002 (11) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon a perusal and consideration of the defence put forward, the present Petition deserves to be allowed. 2. On behalf of the Petitioner the following cases have been relied upon. 1. GKW. Ltd. v. Shriram Bearings Ltd. AIR 1999 Delhi 27. 2. Mayar Traders Ltd. v. Akhil Services Ltd. 52 [1993] DLT 577. 3. Rishi Pal Gupta v. S.J. Knitting Finishing Mills (P.) Ltd. 73 [1998] DLT 593. 4. Wastinghouse Saxby Farmer Ltd., In re [1982] 52 Comp. Cas. 479 (Cal.). 5. United Western Bank Ltd., In re [1978] 48 Comp. Cas. 378 (Bom.). 6. Goodwill India Ltd. v. P.S.B. Paper Mills (P.) Ltd. AIR 1996 Punj. Har. 60. 3. I shall first deal with the consequences of the Respondent s failure to send a Reply to the Statutory Notice. The reliance of Mr. Valmiki Mehta, Learned Senior Advocate appearing for the Petitioner on the above-mentioned decisions of my Learned Sister Usha Mehra, J. is somewhat exaggerated. The decisions do not inexorably lead to the conclusion that winding up orders must unvariably be passed where no response to a Statutory Notice has been made. From my understanding of the judgment my Learned Sister had taken the failure to reply to the notice as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 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 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 debts. [For the above propositions Pradeshiya Industrial Investment Corpn. of Uttar Pradesh s case ( supra ) in which the observation in Amalgamated Commercial Traders (P.) Ltd. v. A.C.K Krishnaswami [1965] 35 Comp. Cas. 456 (SC) and Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 (SC) have been paraphrased]. ( vi )If the stance of the adversaries hangs in balance it is always open to the Company Court to order the respondent-company to deposit the disputed amount. This amount may be retained by the Court and be he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been briefly outlined, Mr. Mehta has drawn attention to the fact that the several letters dated 27-11-1996, March 4, 1996, May 2, 1998, 31-7-1998, 13-8-1998, 20-8-1998, 21-8-1998, 31-8-1998, 19-9-1998, 9-1-1999, 6-2-1999, 12-2-1999, 27-2-1999 and 19-8-1999 have not been replied to. Particular emphasis has been placed on the letter dated 2-5-1998 in which the petitioners have recorded that they had pursued the matter with Mr. E.C. Kim, G.M. and it had been given to understand that due to a severe cash crunch a percentage reduction in the claims had been asked for. In the letter dated 31-7-1998 it had been recorded that the job was completed to the respondent s entire satisfaction and despite the threat for initiation of the legal proceedings contained in this letter, the respondent-company remained resolutely implacable. In the letter dated 6-2-1999 the Petitioner had recorded that "on 29-1-1999, our Brig. Mohindra Singh had brought to the notice of Mr. Bahng that the working done by Mr. K.N. Datta (since retired) showing an excess payment of about 26 lakhs by DMIL was incorrect and not acceptable to us. Please note that all payments released by DMIL in the past were duly cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appropriate stage. 4.From the afore-going facts, it is evident that on the basis of the contract itself and the bills submitted by the plaintiff, it has received excess payment in the tune of Rs. 21,64,434.20. The Defendant had also made a claim for the said amount against the plaintiff by its letter dated 4th August, 1999. Apart from the same an amount of Rs. 6,65,000 is also due to the defendant on account of the late deliveries and the same was also raised in the said letter. Therefore, substantial amounts over and above the claim in the present suit is due to the defendant, along with interest accrued thereon at the same rates as claimed by the Plaintiff." 10. In fairness to Mr. Shakhdhar while he had greatly emphasised the pendency of the civil suit he had only fleetingly contended that because of its existence the winding up petition should be dismissed. It is now a firmly entrenched legal principle that the filing of a civil suit will not per se oust the jurisdiction of the Company Court. Mr. Shakhdhar s argument, however, was that because of the pleadings in the written statement, a bona fide and substantial defence had been disclosed and, therefore, the windi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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