2013 (4) TMI 476

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..... ort 'Act' carrying on business of manufacture of rubber moulded and extruded products, entered into an agreement with the respondent company also incorporated under the Act for supply of bearings and when the respondent allegedly having failed to pay the portion of the value of the goods supplied to the extent of Rs. 35,56,576/- led to a statutory notice dt. 11.11.2010 following which too no payme .....

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..... nt were, in fact, defective or not being a pure question of fact requires an adjudication after a trial. Hence the defence is not a moonshine defence. Since a triable issue has arisen petitioner cannot but be relegated to the Civil Court for appropriate reliefs. 4. In Divya Export Enterprises v. Production (P.) Ltd ILR 1990 Kar 1610., it is held that discretion exercisable under the Companies Act .....

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..... . The inability referred to in the expression 'unable to pay its dues', in Section 433(e) should be taken in the commercial sense. In that, it is unable to meet current demands. It is plainly and commercially insolvent - i.e., to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain - as to make the court feel satisfied - that the existing and proba .....

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