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TMI Blog2013 (1) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the Judge by making application for correction of the judgment on that score. Once it was not done it is very difficult to go behind the acknowledgment of liability that too, not disputed at the relevant time. In course of hearing, respondents handed over an auction notice wherefrom it is found, the properties belonging to the respondents were put up for sale. Defence raised was a mala fide approach as there is no plausible dispute that could resist the winding up petition. The amount involved in the petitions would certainly satisfy the test of applicability of sections 433, 434 and 439. The winding up petition of a creditor could only be resisted through a bona fide dispute and nothing else. From the facts it would be clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the three respondents being in the common management, as against the company above named. The company was engaged in publishing news daily by the name of "Statesman" which had his age old repute and glory that was decaying resulting in acute financial stringency. Newsprint suppliers were reluctant to continue supply as their outstanding mounted up. The company approached the respondents for financial accommodation. The respondents were also in the business of trading of newsprint. They agreed to supply newsprint by procuring from the market. Instead of direct supply from the paper mills the supply was routed through the respondents inter alia on the following terms :- (i) The respondents would procure newsprint from the market and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents claimed further interest on the overdue amount. The learned single Judge heard the winding up petitions and disposed of the said petitions by three judgment and orders admitting the winding up petitions. Although the amounts, for which the winding up petitions were admitted, varied the reasoning given by His Lordship were identical. Hence, we intend to deal with all the three appeals by this common judgment. 4. If we go by the judgment and orders impugned, we find, the company raised a plea before His Lordship, the amount became disputed as the company later on came to know, respondents overcharged by raising inflated invoices and as such they became entitled to appropriate rebate not only in case of pending invoices but also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward. We enquired whether the company would be able to pay or deposit Rs. 6.05 crores so that we could give one more opportunity to the parties to go back to the Civil Court where the suit was pending to have it adjudicated on the rival claims. We adjourned the matter on more than one occasion. Lastly Mr. Abhijeet Chatterjee, learned senior counsel informed us that the company would not be in a position to pay or deposit Rs. 6.05 crores unless the respondent would agree to the same. Moreover they would not pay so in one go. Pertinent to note, the amount was offered in the later part of 2009 and early part of 2010 and even after two full years the company was not in a position to pay and/or deposit the said amount. In such circumstances we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are sorry to point out, the company should not have taken a dishonest approach that would cause immense injury to their past glory. The learned Judge recorded, the company wanted to pay off the dues to the extent Rs. 6.05 crores. The learned Judge did not record the way the amount was explained in the written notes of argument handed over to us in court. The company also did not go back to the learned Judge by making application for correction of the judgment on that score. Once it was not done it is very difficult to go behind the acknowledgement of liability that too, not disputed at the relevant time. In course of hearing, Mr. Chowdhury handed over an auction notice wherefrom we find, the properties belonging to the respondents were p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judge rightly rejected. 11. The precedents on the issue would consistently say, winding up petition of a creditor could only be resisted through a bona fide dispute and nothing else. From the facts it would be clear the parties with their eyes wide open, agreed to the terms and conditions stipulated in the agreement. From the facts it is clear, the company was in financial stringency and their regular suppliers were reluctant to continue supply in view of huge outstanding. At that juncture the company approached the respondent for financial support. No commercial people would agree to support another party without any commercial gain. If the rate charged by the respondent was higher than the market rate the company was free to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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