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TMI Blog2009 (4) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 minus ₹ 14,67,728 (paid during pendency of the present proceedings) = ₹ 16,37,989. In any view of the matter, there is no doubt that the respondent-company owes the petitioner-company of the debt entitling it to a winding up order. - COMPANY PETITION NO. 18 OF 2008 - - - Dated:- 29-4-2009 - PRAKASH KRISHNA, J. R.P. Agarwal for the Petitioner. P.K. Pandey and Anoop Trivedi for the Respondent. JUDGMENT 1. Heard Sri R. P. Agarwal, learned counsel for the petitioner-company and Sri P. K. Pandey, advocate holding brief of Sri Anoop Trivedi, learned counsel appearing on behalf of the respondent-company. 2. This is a petition for winding up of the respondent-company under section 433( e ) and ( f ) read with section 434/439 of the Companies Act, 1956. The respondent-company, i.e., Anand Tissues Ltd., is a public limited company and its authorised capital is Rs. 750 lakhs. Its registered office is situate at Bhrigu Ashram, 49/4, Mansarovar, Meerut, U. P. The case of the petitioner-company is that it is engaged in the manufacture of sodium sulphite and sodium bisulphite at its factory situate at Gujarat. The petitioner claims that it is a sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. 5. Learned counsel for the petitioner-company submits that a sum of Rs. 32,19,118 was due originally as on 31-3-2008. The submission is that the amount due is an admitted amount which the respondent-company has failed to pay in spite of repeated opportunities granted to it. Therefore, the respondent-company is liable to be wound up. Elaborating the arguments, he invited the attention of the court towards the statement of account filed along with the counter affidavit filed by the respondent-company. A bare perusal of the said statement of account would show that still a sum of Rs. 31,05,717 is the admitted liability of the respondent-company, submits learned counsel for the petitioner. 6. In reply, learned counsel for the respondent-company has placed reliance on paragraphs 19 and 20 of the counter affidavit. In paragraph 19 of the counter affidavit it has been stated that the petitioner-company has to adjust the amounts for the inferior material as the same had been rejected after the clinical tests and the same was duly informed by the respondent-company to the petitioner-company. In paragraph 20 it has been stated that several consignments sent by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is liable to be rejected. The respondent-company was required to file at least some prima facie evidence in support of the said plea which it failed. 10. In the alternative, through these letters which have been collectively marked as annexure CA-4, an objection, regarding low quality of goods (low purity) in respect of four Invoice Nos. 46, 74, 78 and 80, was raised. 11. The case of the petitioner-company is that no such grievance was raised by the respondent-company at any point of time. It appears that the plea of charging of higher rates over and above the prevailing market rates in the bills has been put forward as an afterthought, for the first time here. Significantly, no such grievance was raised by the respondent-company in response to various letters given by the petitioner-company for payment nor any such plea was put forward in response to the legal notice dated March 25, 2008, of the petitioner given before filing of the present petition. The respondent-company has debited a sum of Rs. 66,000 in this regard on October 31, 2007. The said entry for the sake of convenience is reproduced below : "31-10-2007To Sodium Sulphite (Ex. U. P.) New Ref. 91 30 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , thirdly, the company adduce prima facie proof of the facts on which the defence depends." (p. 131) (2) In Advent Corpn. (P.) Ltd. [1969] 39 Comp. Cas. 463 (Bom.), it has been held that the court takes only a prima facie view of the petition on the material before it and has to consider whether that material would justify the court in summarily dismissing the petition, or whether it would require further investigation. At the admission stage, the court has to consider the contentions of a preliminary nature that the petition is not maintainable or that the petition constitutes an abuse of the process of the court insofar as it is based on a disputed debt or if it is a creditor s petition, that the petitioner has failed to make out that he is a creditor. (3) In NEPA Ltd. v. Jnanamandal Ltd. [2001] 107 Comp. Cas. 240 1 (All.), a decision of this court; it has been held that there are three tests which have been laid down by the Apex Court in Madhusudan Gordhandas Co. s case ( supra ), namely, that : "( i )that the defence of the company is in good faith and one of substance; ( ii )that the defence is likely to succeed in a point of law ; and ( iii )the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the amount has been admitted by the respondent-company. However, the matter was adjourned to 2-4-2009, to enable the respondent-company to bring further sum of Rs. 10 lakhs, failing which it was provided that the winding up petition will proceed. 19. It may also be placed on record that on 19-3-2009, a bank draft of Rs. 5 lakhs was given to the petitioner-company but the court directed for further payment of Rs. 10 lakhs. 20. The matter was taken up on 2-4-2009 and the following order was passed : "The company has clearly violated the terms of the order dated March 19, 2009, as the same has not been complied with. Put up this matter on April 13, 2009. On that date the respondent-company will bring a further draft of Rs. 10 lakhs failing which the petition will be advertised. The respondent will also on the April 13, 2009, show the draft of Rs. 5 lakhs indicated in the fax message dated March 31, 2009, as placed before this court has been handed over to the applicant-company." 21. The matter was then listed on 21-4-2009, when a draft of Rs. 5 lakhs was offered which was not accepted by learned counsel for the petitioner-company on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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