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TMI Blog2006 (9) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of the respondent company to take charge of all the assets, properties and records of the respondent company with all powers under section 457 of the Companies Act (1 of 1956) to be exercised under section 458 of the said Act without the section and intervention of this Hon ble Court save and except in the case of sale of the immovable properties of the respondent company. ( b )The respondent company be directed to pay to the petitioner the costs of the petition. 2. Upon failure to repay the loan and interest, provided by petitioner to respondent company, the petitioner gave a statutory notice to the respondent company under sections 433 and 434 of the Companies Act, 1956 (for short the Act ), demanding loan amount with interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued TDS certificates in Form No. 16A. The respondent company defaulted in paying the interest from September, 1997 and since then it has not paid any interest on the loan amount, Therefore the petitioner sent a notice under sections 433 and 434 of Act on 30-11-1999 and another notice on 31-12-1999. The notices of petitioner were replied by the respondent company vide letter dated 4-2-2000 mentioning that there was no recoverable debt. It was also mentioned that there should be any document for recoverable debt. The petitioner sent reply dated 3-3-2000 along with photocopy of Form 16A furnished by respondent company and requested to discharge the liability of payment of the principal amount along with the interest. The petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest and what were the terms about interest. In the natural course of business any such transaction, more particularly with a company, cannot be without document and without backed by authority of the company through a resolution of the Board of Directors or by General Meeting of the company. ( vii )The alleged extract of account of books of petitioner is not admissible in evidence nor reliable. Similarly the statement of account of Bank is not reliable as the same is not verified as per Banker Books of Evidence Act. ( viii )No document has been placed for payment of interest till August, 1997 or any period. The alleged certificate of deduction of tax at source is also not reliable. ( ix )The petition is filed with obique motive to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court had occasion to consider the circumstances under which the court is justified in ordering winding up of the company. It was indicated thus : "20. Two rules are well-settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court had dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. [ See : London and Paris. Banking Corporation (1874) LR 19 Eq 444]. Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in point of law. 10. Bearing these principles in mind if I examine the facts of this case, I find that this is a case of bona fide disputed debt. Even from the petition for winding up it is evident that the petitioner failed to place on record the terms and conditions of the alleged debt and the respondent No. 2, who has unduly helped the petitioner is absconding since 1999. Even the petitioner failed to place on record the valid documents regarding alleged payment of interest till September, 1997. In the facts and circumstances of the case it cannot be held that the respondent company neglected to pay the debt within the meaning of section 433(1)( a ) of the Act. The winding up petition is not a legitimate means of seeking to enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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