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TMI Blog2012 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ect in the State of Mizoram. After sometime, the company pulled out of it. They entered into a different relationship. The petitioning creditor agreed, on 15th December, 2007, to sell to the company plant, machinery and vehicles at a total consideration of Rs. 2,75,73,614.41/-. There were 47 items of plant and equipment and 18 vehicles, all described in the schedule II to this agreement. The consideration had to be paid in 15 instalments in this manner. At the time of signing of the agreement the company had to pay Rs. 5,00,000/-which was to be treated as the first instalment. Further amounts had to be paid in monthly instalments of Rs. 20,00,000/- for thirteen months commencing from 15th April, 2008. The next and last instalment was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due instalments by the schedule month for payment of last instalment. We are sorry for the inconvenience but would request you to please bear with us. You must appreciate that all your BGs against security and mobilization advance stands cleared (the last BD for Rs. 25,35,500/- is expected to be released in this week)." Then he refers to another email of 29th March, 2009 sent by I.P. Tantia on behalf of the company. This is what was stated therein: "Regarding the instalment payment, I regret that there is a delay as Mizoram Project is facing lot of problem and the desired billing is not achieved. In the meantime, our Company also had some bad time and hence, the delay. I would request you to kindly bear with us for some more time." He su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following manner: "I also take this opportunity to inform you that the issue of one tipper from RBM - PATI for which the papers has not been received, will be sorted out very shortly. However, I request you to please advise the concerned person for papers of a few equipments from RBM, the list of which was forwarded to you. No one has contacted me in this regards. Regards. A.K. Surana." 7. Mr. Bachawat showed me paragraphs 11 and 12 of another letter of the company dated 7th December, 2010. Paragraphs 11 and 12 of that letter are important and are inserted below: "11. Your client was, therefore, not only required to wait till the dates specified in the 4th column of Schedule II for transferring the Plant/Equipments/Vehicles, but al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings and Conclusions 9. It is absolutely plain that the company had the fullest use of all the equipments and vehicles described in Schedule II to the agreement dated 15th December, 2007. They have paid Rs. 48,00,000/- for it and not the rest of the consideration. In their email of 29th July, 2008 the company wanted accommodation till November 2008. There was no disputation about liability. There was a request to the petitioning creditor to provide some "papers". The email of 26th March, 2009 did not even mention that. The admission was absolutely unconditional. The company simply said "I would request you to kindly bear with us for some more time. I am quite hopeful that we should be able to make some payment in the month of May 2009". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it did not entertain the winding up application. 13. The case of IBA Health (India) (P.) Ltd. v. Info-Drive Systems Sdn. Bhd. [2010] 10 SCC 553/104 SCL 367/8 taxmann.com 1 cited by Mr. Bose is diametrically opposite. The company was a limited company in private hands. The Supreme Court held that solvency of the company was not a ground for it to hold that it was not unable to pay its debts. There is no dispute that the ratio of the two cases is divergent. The decision of 1994 was rendered by a two judges' bench of the Supreme Court whereas the 2010 decision was rendered by a three judges' bench. I am bound by the three judges' bench decision of the Supreme Court which clearly opines that when there is no doubt regarding a debt or that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign the judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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