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TMI Blog2012 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the amended petition. The petitioner has failed to show that there was a mutual, open and current account where there were reciprocal demands made by the parties after May, 2003. Petition has been filed in November, 2007. It is time barred. - CO.PET. 281/2007 - - - Dated:- 13-7-2012 - MS. JUSTICE INDERMEET KAUR, J. For Appellant: Ms. Kajal Chandra, Adv. For respondent: Mr. Praveen Kumar Aggarwal, Advocate. INDERMEET KAUR, J. (Oral) 1 M/s New India Colour Company Ltd. (hereinafter referred to as the petitioner‟) seeks winding up of M/s Orion Processors Pvt. Ltd. (hereinafter referred to as the respondent) under Sections 433 (e), 434 and 439 of the Indian Companies Act,1956. 2 The case of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent is that the parties had dealings with one another only up to 2002; thereafter no commercial transaction took place between the parties due to bad quality of the dyes and chemicals supplied by the petitioner. On 30.7.2004, the petitioner sent 6 samples of dyes of 1 Kg each with a request that if the samples were up to the mark, a bulk order would be placed; considering the old business relations, C-Form was issued; samples were however not up to the mark. The petitioner approached the respondent on 30.5.2006 praying for one more chance to be given to him and to improve his products, he was permitted to give fresh samples which also not being up to the mark were rejected and as such the question of any liability by the respondent in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction of 30.07.2004 was supply of 5 Kg of dye for Rs.1404/-; and thereafter almost two years later i.e. on 15.04.2006 there was another supply of 30 Kg of dye in the sum of Rs.3,956/-. All other transactions between the two companies relate to much larger amounts; this is reflected in the ledger book of the petitioner company itself; and is also evident from the invoices/bills filed by the petitioner company which relate to transactions in the sum of Rs.42,487/-, Rs.38,243.80, Rs.9,662.80, Rs.29,922.40, Rs.39,188.80, Rs.6,772.80, Rs.22,355.40 and Rs.8,804.64. The ledger accounts are even otherwise un-audited accounts and as noted supra have glaring discrepancies in Annexure 3 (page14) and Annexure 3A (at page 117 of the paper book). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n had made a reference to this; notice is however conspicuously silent on this point; if the petitioner had business dealings with the respondent up to 2006 as is the plea now sought to be set up; he should have averred this fact in the legal notice which he did not; case of the petitioner clearly becomes suspicious; the legal notice is in fact the very basis of a winding up petition. 8 Courts have time and again held that if a dispute is raised by the respondent which is bonafide and cannot be termed as either moonshine‟ or illusory‟, it would not lie within the jurisdiction of the Company Court to entertain a winding up petition. A dispute of a civil nature would not be encompassed within the provisions of Section 433 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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