9911796707
TMI Blog2012 (11) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... to a right conclusion one way or the other. Such is the case here. The learned Judge found the Company being dishonest having taken dishonest plea to resist the winding up proceeding. Yet he could not give any relief to the appellant creditor as the appellant-creditor was also not clear on his version. He has now approached us with the present appeal. 2. Facts would depict, the appellant claimed to have been entrusted with the job of aluminium fittings in the company's project at Pailan Park. If we go by the statutory notice of demand we would find that he supplied goods installed in various buildings belonging to the company. The company duly received and acknowledged without raising any objection. The work was completed on February 4, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies of the bills would also show that the company received those on February 27, 2008. Yet they denied the relationship. 4. Company filed affidavit taking a complete different stand. In the affidavit they admitted the relationship however, avoided payment on the ground of settlement of claim. According to them, between the period of September 2002 to 2005 various verbal orders were placed. The company used to make part payments that position continued till 2005. The company also admitted to have paid rupees sixty four lacs eighty seven thousand and five hundred as per their books. The company claimed, in and around February 2008, the appellant for the first time raised bills. The company scrutinized those. Upon such scrutiny those were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that would also indicate the self-same figure as if no further sum was ever received thereafter. 6. The learned Judge was perplexed. His Lordship very rightly declined to exercise discretion in favour of the appellant. 7. Mr. Vijoy Nand Mishra, learned counsel appearing for the appellant contended before us that the learned Judge failed to appreciate the conduct of the company. He referred to the series of the orders passed earlier by another learned Judge wherein the company was at the receiving end. On a combined reading of those orders we find that the so-called full and final settlement receipt purportedly, issued by the appellant was called in question. His Lordship directed the original to be produced. The company initially pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy the Court that there was a definite sum due and payable by the company to the appellant the winding up petition could not be held to be maintainable. Since the winding up petition was not maintainable it would deserve only the order of dismissal and nothing short of it. Question of securing their claim that too, an unsecured one could not arise. To support his contentions he referred two Apex Court decisions in the case of Mediqup Systems (P) Ltd. v. Proxima Medical System GMBH [2005] 59 SCL 255 and in the case of IBA Health (I) (P.) Ltd. v. Info-Drive Systems Sdn. Bhd. [2010] 104 SCL 367 (SC). 11. The concept of bona fide dispute is being explained by the Courts in umpteen number of judgments. However, the genesis would still lie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even then, the company initially denied the relationship, subsequently took a different stand in the affidavit that would make the position of the company vulnerable. However, the learned Judge could not extend the relief to the petitioning creditor, as pre-requisite to admit a winding up petition at the instance of the unsecured creditor would denote, there must be a quantified just debt due to the creditor by the company. The appellant-creditor was inconsistent in his stand as discussed above. 14. The learned Judge could not come to a definite conclusion as to the quantum. Hence, it would not be proper to admit the winding up petition. The decision in the case of Pfizer Ltd. (Supra) would have no application as the learned Judge while ..... X X X X Extracts X X X X X X X X Extracts X X X X
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