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TMI Blog2008 (7) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... inion of the court, is to pressurize the respondent for payment even before thrashing out the liability to be decided by the court of civil law. Under these circumstances, it is well settled that winding up petition cannot be made as a device to pressurise the respondent to make payment as per the demand made by the petitioner. Hence the learned single judge was perfectly correct in rejecting the petition. - O.S. A. NO. 239 OF 2003 - - - Dated:- 3-7-2008 - M. CHOCKALINGAM AND R. SUBBIAH, JJ. K. Chandramouli and Radhakrishnan for the Appellant. K Selvaraj for the Respondent. JUDGMENT M. Chockalingam, J. This appeal is directed against the order of the learned single judge made in Company Petition No. 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, a rejoinder was also issued, which was also replied reiterating the same allegations and under these circumstances, it would be quite clear that the respondent is unable to pay the debts and hence a necessity arose to file this petition for ordering winding up. This petition was actually countered by the respondent's side stating that it is true that the petitioner supplied 75 bales of cotton, but it was found to be of inferior quality; that immediately, the matter was brought to the notice of the broker; that the broker also made an inspection and also appraised the situation and he also brought the same to the knowledge of the petitioner and the petitioner also agreed to give rebate therefor, but the rebate of Rs. 2,51,996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to pay the specific amount, has failed to pay and the respondent was unable to make the payment and under these circum stances, winding up proceedings should have been ordered, but failed to do so. In the instant case, balance-sheet, which was actually filed by the respondent, would dearly reveal the amount what is now put forth by the petitioner's side as liability and under these circumstances, it should have been taken into account. Once liability is an admitted fact, the petitioner is able to show that the respondent was unable to make the payment and hence the winding up proceedings should have been ordered. Learned counsel for the respondent would submit that in the instant case, the petitioner has neither shown the definite l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make rebate, but not done so. Subsequently, the statutory notice was also sent by the petitioner through the lawyer on February 11, 2000, which was also replied. Thus, the question as to whether the supply made was as per the quality as understood between the parties or they were inferior quality was the matter to be decided on fact. Apart from that, according to the respondent, as understood between the parties, a sum of Rs. 2 lakhs and odd was to be given credit by way of rebate, but not done and it is also made mentioning in the reply notice. At this juncture, the contention put forth by learned counsel for the petitioner is that there was balance-sheet of the respondent, which would show the particular figure now demanded by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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