9911796707
TMI Blog2008 (9) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in March, 1982 entered into a contract with the petitioner-company, namely, M/s. Lloyds Metals and Engineers Ltd., having its registered office at Plot Nos. A9 and 10, M.I.D.C. Phase II, Dombivili (East) district, Thane in the State of Maharashtra for supply of pipes worth Rs. 60 lakhs approximately required for the integrated steel plant of the opposite party-company at Kalinga Nagar, Industrial Complex, Duburi in the district of Jajpur, Orissa. According to the petitioner-company, materials (pipes) worth Rs. 59,25,001 were supplied to the opposite party-company against which the said company paid a total sum of Rs. 54,48,493 leaving a balance of Rs. 4,76,508. As per clause 8.1 of the letter of the award, 10 per. cent, of the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss it is the subject-matter or one of the subject-matter thereof." 3. According to the opposite party, admittedly the delivery was to be completed by July 19, 1999, but due to non-completion of the deliveries within the schedule time, the delivery period was extended till November 30, 1999, with the right to levy liquidated damages. The deliveries were completed by December 28, 1999. Therefore, while considering the request of the petitioner for making the final payment claimed vide invoice dated December 17, 2004, during the pendency of this company petition, the opposite party released final payment of Rs. 2,01,328 after deducting the liquidated damages against the delayed deliveries in terms of the clauses of the purchase order. 4. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when the company contended that the work had not been done properly was not allowed (see Brighton Club and Norfolk Hotel Co. Ltd., In re [1865] 35 Beav. 204). Secondly, where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (A Company, In re [1894] 94 S. J. 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely (see Tweeds Garages Ltd., In re [1962] 32 Comp. Cas. 795 (Ch. D); [1962] Ch. 406). The principles on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. The petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed and under circumstances may be stigmatized as a scandalous abuse of the process of the court. At one time petitions founded on disputed debt were directed to stand over till the debt was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern practice has been to dismiss such petitions. If the debt was bona fide disputed, there cannot be neglect to pay within the meaning of section 434(1)(a) of the Act. If there was no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company was un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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