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TMI Blog2010 (1) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... Chockalingam, J. - This intracourt appeal challenges an order of the learned Single Judge of this Court dismissing a petition for winding up of the respondent-company in C.P. No. 78 of 2009. 2. The Court heard learned counsel for the appellant and also for the respondent. 3. The case of the appellant before the Company Court and equally here also is that the appellant was entrusted with the work by the respondent; that the same was, accordingly, done; that notices were sent calling for the balance amounts; that the earliest notice was sent on 31-1-2006; that thereafter, though part payments were made, the balance amounts were not settled; that under such circumstances, a notice was issued under section 434 of the Companies Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was a request on the side of the respondent to return the bank guarantee for a sum of Rs. 10 lakhs; that the same was also returned; but, the balance was not settled; that under such circumstances, there arose a necessity for issuing a notice under section 434 of the Companies Act calling for the admitted balance which was not paid; that it was a case where it would clearly indicate that the respondent-company was not solvent; that under such circumstances, it was a fit case for ordering winding up; but the learned Single Judge has taken an erroneous view, and under the circumstances, the order of the learned Single Judge has got to be set aside and an order of winding up be issued. 7. Learned counsel appearing for the respondent ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s disputed, but also it was time-barred. In the absence of ascertained liability which was to be worked out by the parties and also in view of the added circumstance that there was no admission made by the respondent anywhere in anyone of the communications, no question of winding up of the respondent-company would arise. It is repeatedly held in a catena of decisions by the Apex Court and this Court that the winding up process cannot be taken as a device for recovery of money as regards the transactions between the parties. Merely because there was a notice under section 434 of the Companies Act, it would not lead to an order of winding up to be made. 11. For the reasons stated above, this Court is of the view that the learned Single J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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