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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 ..... which is not supported by any document. On the other hand, documentary evidence on record shows that the liability is admitted liability. Petition allowed. Winding up petition admitted - provisional liquidator appointed. - COMPANY PETITION NO. 57 OF 2010 - - - Dated:- 27-4-2011 - VINOD K. SHARMA, J. Fox Mandal and Associates for the Petitioner. A.S. Kailasam and Associates for the Respondent. JUDGMENT 1. Hoe Leong Corporation Ltd., a company registered under the Companies Act 1956 has filed this petition under section 433( e ), ( f ) 434(1)( a ) and 439 of the Companies act, 1956, for winding up of Vaishnovi Infrastructure Engineering (P) Ltd., a company registered under the Companies Act, 1956. 2. The case pleaded by the petitioner is that the petitioner company was engaged in the business of designing, manufacturing, sale and distribution of machinery parts. During the course of the business, the respondent company approached the petitioner by placing orders for supply of various engineering components and materials like the machinery parts. The orders were duly executed and goods were delivered to the respondents in good condition and were utili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner also took a stand that the value of the spares which were to be shipped back was more than the actual amount due to the petitioner. The stand of the respondent company forced the petitioner to issue a statutory notice on 22.10.2009. 8. The reply to the notice was submitted wherein several false pleas were made to deny the liability. The petitioner submits that non-payment of the dues amounting to Indian Rs. 4,51,34,179.13 (Rupees four crores fifty one lakhs thirty four thousand one hundred and seventy nine and paise thirteen only) though admitted would show that the respondent company is unable to discharge its admitted liability. 9. It is also pleaded that it would be just, fair and equitable that the respondent company be ordered to be wound up, as it has lost its substratum. 10. On notice, the respondent company filed a counter denying the averments made in the company petition. The respondent company, however, admitted that the petitioner supplied various quantities of engineering items, spare parts of heavy equipments and industrial machinery, but denied having placed any orders. 11. The stand is also taken that the goods supplied were not utilised by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, which the respondent company has failed to pay inspite of statutory notice. This proves that the respondent company is unable to pay the admitted liability, thus, is liable to be wound up. 20. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Madhusudan Gordhandas and Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp Cas 125 (SC) wherein the Hon'ble Supreme Court pleased to lay down as under: "Two rules well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was confeasible. Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of winding up, as the remedy of the petitioner is to recover the money in accordance with law by proving supplies made, that too in pursuance to the order and of good quality. 23. It was vehmently contended by the learned counsel for the respondent, that the stand of the petitioner that the dispute was raised for the first time after issuance of statutory notice cannot be sustained, as since May 2008, there was exchange of e-mails wherein a specific stand was taken by the respondent company that excess supplies of goods were made without any order, and that some of the materials were not of good quality. 24. The reliance was also placed on the notice issued by the office of the Commissioner of Customs under section 72(1) of the Customs Act, calling up the respondent company to pay the demage on the goods imported along with interest to prove that the goods were lying in the warehouse for re-export. Therefore, there exist bona fide dispute with regard to the claim raised. 25. In support of the contention that this is not a fit case to pass an order of winding up, the learned counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent company is unable to pay the debt. The dispute raised by the respondent company cannot be said to be bona fide dispute, but merely an attempt to deny the admitted liability, on a false plea, which is not supported by any document. On the other hand, documentary evidence on record shows that the liability is admitted liability. 30. For the reasons stated, this company petition is ordered to be advertised. 31. ( i ) Notice on the court notice board, ( ii ) Notice to the respondent, ( iii ) Notice to the Registrar of Companies, Coimbatore, ( iv ) Affixture of notice at the premises of the registered office of the respondent company. ( v ) The petitioner is directed to publish the company petition in one issue of Tamil daily ' Dina Malar ' English daily ' Indian Express ' and in the Tamil Nadu Government Gazette fixing the date of hearing on, ( vi ) The petitioner is directed to publish the company petition giving at least fourteen days clear advance notice. ( vii ) The official liquidator, High Court, Madras is appointed as provisional liquidator and he is also directed to take charge of the assets of the respondent company. The ex-directors of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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