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TMI Blog2004 (3) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... ness activity, the petitioner claims to have done some job work as also sold certain goods to the respondents. It is the case of the petitioner that they having done some job work and supplied goods, had raised the bills on the respondent totalling Rs. 6,14,404 but respondent has not paid the same. Eventually on 3-9-1999, the petitioner sent legal notice under section 433/434 of the Companies Act to the respondent calling upon them to pay the outstanding dues which according to petitioner had become payable, but dispute receipt of the notice, the respondent failed to pay the same and hence, petition is filed against the respondent for their winding up on the ground of their inability to pay the debt. The respondent on being served filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also communicated to us about labour agitation and that could be main cause of quality problem. The copy of petitioner s E-mail dated 15-7-1998 enclosed as Annexure-R/4. Resultantly the petitioner has compensated to the foreign buyer for the inferior quality specification by the respondent the sum of Rs. 6,90,000. Knowing fully well this fact, the petitioner for reason best known to them has suppressed these facts from this Hon ble Court, which it has done intentionally. Thus the petitioner is guilty suppressing the material fact and the petitioner deserves to be dismissed on this ground also. 5. In reply to para No. 5, it is submitted that respondent repeatedly informed petitioner company as regards complain received from the foreign buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me in future, the Court is under legal obligation to see that no running company be pushed into a winding up for one or two defaults. In other words, efforts must be to save the company from being wound up, if the case to that effect is made out on facts. It is for this purpose and keeping in view this objective, the legislature has enacted sub-section (2) of section 443 which empowers the Company Court to exercise powers while hearing a petition for winding up. Sub- section 2 does empowers the Company Court to refuse to make an order of winding up, if it is of an opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Companies Act is entirely different. It cannot be seen and confined to the claim of petitioner only but has to be seen, judged and tested in its entirety such as nature of claim laid by the petitioner, the defence taken by the company in relation to claim, in question, the financial position of a company, its viability, commercial sustainability in the market, whether the debt is admitted by the respondent company or not, etc. It is always regarded as a petition not at the instance of one creditor but is regarded as petition in its representative capacity once admitted. It is essentially for these reasons, a rule of caution is provided by judicial pronouncement not to entertain the petitioners for winding up unless a very strong ..... X X X X Extracts X X X X X X X X Extracts X X X X
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