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TMI Blog2003 (11) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner i.e. inability to pay the debt. 2. It is the case of the petitioner that they purchased certain goods from the respondent but respondent though agreed to give cash discount to petitioner, failed to do so. It is contended that respondent issued credit notes worth Rs. 4,39,085 in favour of petitioner, on different dates between 1997 to 1998, yet did not either repay the money or gave credit of the same amount. It is for realisation of this amount, the petitioner went on to press upon the respondent to pay and eventually when found that respondent is not paying, served a legal notice under section 434 of Companies Act calling upon the respondent to pay the money or face the consequence of winding up. Since, despite ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In my considered view filing of a company petition for winding up on the facts alleged and relied upon are not enough and/or proper for entertaining a petition for winding up of any company. It is essentially a case of enforcement of some agreement entered into between the parties. It requires civil adjudication in civil court namely what are the rights and obligations of the parties vis-a-vis each other, whether they were performed or breached and if so as per the terms of so-called agreement or not. Whether respondent had agreed to give any cash discount and if so, on what terms and conditions ? Whether respondent had to recover some money from any sister concern of the petitioner and if so, whether respondent could adjust the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petition, if it is of the opinion that some other remedy is available to the petitioner for realisation of their dues or that they are unreasonable in pursuing the remedy of winding up. The reason is that winding up of any company is always regarded as a extreme and/or last remedy. It is a death of any company whose existence comes to an end on passing of a winding up order. The courts have to be very cautious in their approach while entertaining any winding up petition against any company. No creditor can take advantage of the fact for filing a petition for winding up only because their debtor happens to be a company. Though this is one of the most important factor which enables the creditor to file petition for, winding up, but it is eq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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