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TMI Blog2005 (1) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... r sections 433, 434 and 439 of the Indian Companies Act, 1956, before the learned single judge sitting in the company jurisdiction. The second (numbered) appeal as aforesaid is made by the company itself. 2. Factually, the petitioning creditor sold, supplied and delivered certain materials in between November 9, 2001 and June 22, 2002. The company duly accepted the goods without raising any objection. After giving credit a sum of Rs. 18,96,453.20 is unpaid along with the claim of interest at 24 per cent per annum. The company took two defences. The first one is that due to abrupt stoppage of supply the company suffered damages. In reply to the statutory notice the tune was for a sum of Rs. 50 lakhs wherein in the affidavit-in-opposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s India Ltd. [1971] 41 Comp. Cas. 174 (Cal.) they contended that when the dispute is bona fide there is no question of putting condition. If the court has some doubt whether the disputes are bona fide or not and is not in a position to come to a definite conclusion that the disputes are mala fide and manufactured only to create a defence to the winding up petition, the court may stay the winding up proceeding and relegate the parties to an action on terms as to security or otherwise. This is not such a case. A further judgment is cited being in S.R.C. Steel (P.) Ltd., In re [ACO No. 110 of 2004]. In all, a Division Bench of this High Court held that the court of company jurisdiction would only give emphasis in admitting a winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e element of suspicion cannot be eliminated. In other words, the court is not sure about the mala fide defence of the company. So far the order impugned is concerned the same cannot be said to be flawless to such extent. It is mechanical both in putting condition and not ascertaining the inconsistency of the defence particularly without splitting up the accounts i.e., damages and refund of goods with adjustment of accounts. 8. Hence, we find that there is a justiciable cause of remitting the matter back to the court of company jurisdiction to ascertain the claim and defence afresh leaving aside the admitted amount of Rs. 1,67,120.55 to which the order of the court stands affirmed. The interim order passed by the Division Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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