9911796707
TMI Blog2008 (7) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner made a petition, stating that the petitioner is a registered partnership firm having its business at Mumbai. The respondent is the company registered under the Companies Act, 1956 and is having its business at Coimbatore. The petitioner is engaged in the business of sale of cotton bales to intending purchasers. As per the orders placed by the respondent for the supply of cotton, it was supplied as per the specifications received and the petitioner has raised invoices for the goods supplied. The respondent purchased on credit basis from the petitioner on November 30, 1999, 75 bales for a total price of Rs. 6,66,450. The respondent paid the amount on various dates totaling to Rs. 3,75,000. The last payment was made on February 11, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to be made ; that there is substantial defence for the respondent and therefore, there is no liability at all and the petition is only the device invented for pressurising the respondent to make a demand illegally and hence the petition was to be dismissed. On enquiry, the learned single judge thought it fit to take a view that the petitioner has not come with a case, which would require for ordering winding up and hence it has dismissed the same. Under these circum stances, this appeal has been brought forth by the petitioner. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, 75 bales of cotton was supplied to the respondent was an admitted fact and in the original invoice, which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd came with the false case, though the matter was suitably replied when notices were issued and under these circumstances, the matter has got to be adjudicated before the court of civil law and it is not a fit case for ordering winding up and hence the order of the learned single judge has got to be sustained. The court has paid its anxious consideration on the submissions made and heard learned counsel on either side. After doing so, the court is of the considered opinion that the order of the learned single judge does not require for any disturbance. It is not in controversy that the petitioner-firm is dealing with cotton supply. According to the appellant/petitioner, the total amount, which the respondent was liable to pay as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the earlier notices, there were replies, where the amount is disputed and the quantum is in dispute and the liability is also under dispute. Further, in a given case, where winding up proceedings is initiated under section 433 of the Companies Act, 1956, it becomes necessary that there must be a debt and the liability should be definite. If there is any substantial defence put forth by the respondent's side, it has got to be decided by the court only on appreciation of evidence and hence no question of winding up to be ordered would arise. The petition filed by the petitioner, though ostensibly looks like a winding up petition, it is not so. This device, in the opinion of the court, is to pressurise the respondent for payment even before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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