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TMI Blog2012 (6) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ilised by the respondent. 3. The petitioner raised several invoices between August 2007 to September, 2009 for a sum. The payment was not made on the ground that the respondent company was going through some difficulties. Inspite of waiting for sometime, no payments were received, the petitioner reminded the respondent for payment. However, the respondent company evaded payment of dues. 4. It is also the case of the petitioner that instead of making payment for the goods supplied, the respondent company mala fide disputed the amount due on the plea that some of the material supplied was defective and further that some of the supplies were made in excess without order; but subsequently the respondent company promised and furnished the payment schedule/commencing with effect from February, 2009. The respondent company thereafter again expressed difficulty to make payment. On 16.02.2009 the respondent company was requested to confirm the dues, as it was required by the auditors of the petitioner at Singapore. 5. In response to the request made by the petitioner, the chairman of the respondent company confirmed that a sum of USD 9,26,150.26 was due and payable by the respondent to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The stand is also taken that the respondent is a profit-making running company, which employs more than 1,100 employees; therefore, it is wrong to say that the substratum of the company is lost. 13. The defence raised by the respondent is that the amount claimed by the petitioner is bona fide disputed. 14. The learned counsel for the petitioner in support of the petition placed reliance on the various invoices showing the despatch of materials, and the letter dated 16.2.2009 addressed to the respondent company wherein the managing director-cum-chairman of the respondent company confirmed the payments due to the petitioner to be USD 9,26,150.26 (USD nine lakhs twenty six thousand one hundred and fifty and cents twenty six only). 15. The reliance was also placed on letter dt.17.2.2009 of the respondent company addressed to the petitioner agreeing to pay a sum of USD 9,13,475.88 (USD nine lakhs thirteen thousand four hundred and seventy five and cents eighty eight only) in instalments starting from 30.4.2009 and ending on 30.11.2009. 16. The reliance was also placed on the statutory notice and the reply submitted by the respondent company to contend that though the liabilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the creditor to quantify debt precisely. The principles on which court acts are first that the defence of the company is in good faith and of substance, secondly, the defence is likely to succeed in pint of law, thirdly, the company adduces prima facie proof of the facts on which defence depends. Another rule which the court follows is that if there is opposition to the making of the winding up order by the creditors the court will consider their wishes and may decline to make the winding up order. Under section 433 of the Companies Act, 1956, in all matters relating to the winding up of the company the court may ascertain the wishes of the creditors, wishes of the shareholders are also considered, though, perhaps, that may attach greater weight to the views of the creditors. This right to a winding up order is, however, qualified by another rule, viz., that the court will regard the wishes of the majority in value of the creditors, and if, for some good reason, they object to a winding up order, the court in its discretion may refuse the order." 20.1 The wishes of the creditors will however be tested by the court on the grounds as to whether the case of the persons opposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression 'unable to pay its debts' in section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utlised merely as a means for realising debts due from the company." 26. On consideration, I find force in the contention raised by the learned counsel for the petitioner. In view of the clear admission by the respondent, in response to the fax dated 16.2.2009 admitting therein, that a sum of USD 9,26,150.26 (USD nine lakhs twenty six thousand one hundred and fifty and cents twenty six only) was due and payable and further vide letter dated 17.2.2009 it agreed to pay USD 9,13,475.85 (USD nine lakhs thirteen thousand four hundred and seventy five and cents eighty five only) in instalments, and also coupled with fact that the exports offer was only for the goods worth USD 74,760 shows that amount claimed is admitted liability, which the respondent company failed to pay. 27. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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