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TMI Blog2007 (7) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... they have filed a petition to wind up the respondent-company and to appoint the official liquidator to take charge of the assets of the company as the respondent-company failed to pay the admitted sum of Rs. 1,02,460 towards past payment payable by the company for purchasing products from the petitioners. 3. The petitioners are carrying on business of selling dyes, chemicals and textiles auxiliaries. In the course of business the petitioners supplied on various dates starting from 28-7-2001 to 28-9-2001, for Rs. 1,64,430 to the respondent under 9 invoices for the purchase orders placed by the respondent. The respondent-company made various amounts from 30-8-2001 to 27-12-2002, for a sum of Rs. 61,970 to the petitioners leaving a balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was pending, the managing partner Mr. K.S. Ramaraj who represented the petitioner-firm passed away on 7-10-2006 and therefore his wife and her brother filed an application in C. A. No. 2515 of 2004 for substituting them as the petitioners in the place of the firm which filed C. P. No. 39 of 2004. This application was allowed on 5-1-2007. 6. Heard learned counsel for the petitioners and the learned counsel for the respondent. I have also perused the documents and the judgments referred to by them in support of their submissions. 7. Learned counsel for the petitioners submitted that the respondent-company has to pay a sum of Rs. 1,02,460 as per 9 invoices filed in the typed set of papers and even though the statutory notice was receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion originally filed by the partnership firm, I am of the considered view that the company petition filed by the firm for winding up of the company on the ground that the company could not pay the balance amount of Rs. 1,02,460 is misconceived. 11. The case of the petitioners is that for the goods supplied under nine invoices for a total sum of Rs. 1,64,430 the respondent-company was able to pay only a sum of Rs. 61,970 and the balance of Rs. 1,02,469 is still due and payable by the company. This was seriously disputed by the respondent by contending that the goods supplied were not confining to the standard specified and therefore a debit note was issued on 19-2-2002, by the respondent. It is the further case of the respondent that aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed, and under circumstances may be stigmatised as a scandalous abuse of the process of the court. " (p. 844) 13. In Mediqup Systems (P.) Ltd. s case ( supra ), the Hon ble Supreme Court held that the machinery for winding up will not be allowed to be utilised merely as a means for realising debts due from a company and the debt must be a determined or a definite sum of money. The relevant portion of the judgment reads as under : "This Court in catena of decisions held that an order under section 433( e ) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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