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TMI Blog2012 (11) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount Payee Cheques aggregating rupees two lacs. The appellant-creditor gave credit for those three cheques and contended that the purported final payment of rupees sixty two thousand three hundred and sixty five as on March 2008 would automatically fall flat as the cheques were issued on October 3, 2008 much after the said date. In short, if the account was settled finally how could there be further payments? The appellant however does not explain as to how he would adjust the said three payments as against his claim made in the statutory notice of demand as well as petition. Thus as no definite conclusion as to the quantum could be achieved it would not be proper to admit the winding up petition - against creditor. - C.P. No. 131 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance sum of rupees sixty five lacs thirty-five thousand eight hundred due and payable. He summarised his claim by contending that the total cost was rupees one crore thirty lacs twenty three thousand and three hundred out of which he received payment to the extent of rupees sixty four lacs eighty seven thousand and five hundred leaving a balance sum of rupees sixty five lacs thirty five thousand and eight hundred. According to him, the company assured payment by November 2009 that did not come. He was entitled to interest at the rate of ten per cent per annum. Hence, the statutory notice of demand raised on December 11, 2001. 3. The company promptly replied through their advocate. The company denied receipt of any bill. The company as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company paid the said sum in cash. The appellant received it in full and final settlement. Hence, no claim. The company however did not sufficiently explain their reply to the statutory notice as to why it was so inconsistent with the affidavit. 5. The appellant-creditor filed affidavit in reply that would make the situation more complex. The appellant creditor in his affidavit claimed that the last payment as claimed by the company was not made on January 28, 2006. Even in 2008 company made payments through Account Payee Cheques aggregating rupees two lacs. The appellant-creditor gave credit for those three cheques and contended that the purported final payment of rupees sixty two thousand three hundred and sixty five as on March 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unqualified apology through affidavit. 8. Mr. Mishra contended, considering the conduct of the company the learned Judge should have admitted the winding up petition. He further contended, even if the said sum of rupees two lacs was mistakenly not given credit that would not change the scenario as the balance amount would be much more than rupees five hundred enabling this Court to entertain a winding up petition. He referred to the Division Bench decision of the Bombay High Court in the case of Pfizer Ltd. v. Usan Laboratories (P.) Ltd. [1985] 57 Comp. Cas. 236 in this regard. 9. He prayed for setting aside of the judgment and order impugned in the appeal coupled with an order of admission of the winding up proceeding. 10. Opposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration AIR 1977 SC 577. The decision in the case of IBA Health (I) (P) Ltd. (Supra) and Mediqup Systems (P) Ltd. (Supra) would reiterate the identical concept. It says, "the principles on which the court acts are: (i) that the defence of the company is in good faith and one of substance; (ii) the defence is likely to succeed in point of law; and (iii) the company adduces prima facie proof of the facts on which the defence depends." 12. Mr. Misra relied upon the decision in the case of Pfizer Ltd. (Supra) wherein the Division Bench of the Bombay High Court considered an issue where the principal claims were not in dispute. However, the interest was bona fide disputed. The Single Bench dismissed the winding up petition. The Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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