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TMI Blog2009 (11) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... from a company. Petition rejected. - COMPANY PETITION NO. 86 OF 2009 - - - Dated:- 11-11-2009 - RAM MOHAN REDDY, J. S. Sriranga for the Applicant. Ramesh Iyer for the Respondent. ORDER 1. The petitioner having raised an invoice Annexure-D1 for Rs. 11,07,418.25, on the respondent - a company incorporated under the Companies Act, 1956 (for short the Act ) and having its registered office at the address shown in the cause title, after allegedly carried out its contractual obligations, when payment was not forthcoming despite E-mails Annexures-E series, Annexure-F and correspondence Annexures-G, H, J and K, issued a notice dated 17-7-2008 Annexure-P through legal counsel calling upon the respondent to pay Rs. 17,17,96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lued at Rs. 17,02,000. In paragraph 27, the respondent denies that it is due and payable to the petitioner Rs. 17,17,968 towards services rendered. In addition, the respondent denies that it is commercially insolvent. Lastly, it is contended that the petitioner having not made out a case of a legally enforceable debt, the petition is not maintainable. 3. Heard the learned counsel for the parties, perused the pleadings. The question for decision making is, whether the petitioner has made out a case of a determined, ascertained, definite and undisputed debt, which the respondent-company has failed to pay so as to invoke the extraordinary jurisdiction of this Court, for winding up the respondent-company ? 4. The respondent-company havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spoiling the relationship between the companies, though KSQAO accepted satisfactory completion of the job, while pointing out to the imaginary allegations of Ramesh Iyer after expiry of six months of completion of the contract. 5. The respondent while not disputing the fact that the petitioner carried out the job entrusted though not to the satisfaction, did point out to certain infirmities in the performance of the contract, requiring rectification. In fact, in the reply to the E-mails annexed to the Statement of objections, points out to the performance guarantee issued by the respondent the delay in the completion of the assignment, and the differences in the large amount of data processed, affecting the image of the respondent. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statement of objections or the correspondence between the parties as to why the respondent after quantifying its claim of Rs. 17,02,000 in the reply notice, towards expenses and loss of reputation, called upon the petitioner to pay Rs. 6 lakhs. In my opinion, the only plausible view that can be taken is that as against the petitioner s claim for Rs. 11,07,418.25 in the invoice Annexure-DI, the respondent sought a set off Rs. 17,02,000 and claimed payment of the balance Rs. 6 lakhs from the petitioner. 7. Be that as it may, the controversy between the parties lies in the discharge of the petitioner s obligations in the assignment entrusted not to the satisfaction and specification of the respondent. This aspect of the matter is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ILR 1990 Kar. 1610, this Court held that the discretion exercisable under the Act is like any other judicial discretion and that a mere assertion of a debt payable is not sufficient to attract the discretion of this Court. In the facts and circumstances of this case, the petitioner has only asserted a debt payable by the respondent which is insufficient to attract the exercise of discretion under the Act. 11. The observation of the Apex Court in Pradeshiya Industrial Investment Corpn. of U.P. v. North India Petro Chemicals Ltd. [1994] 3 SCC 348, in the circumstances is apposite : "An order under section 433( e ) is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under the section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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