9911796707
TMI Blog2014 (5) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... INDIA] - It cannot be held that Respondents is unable to pay its debts - Therefore, petitioner may institute appropriate proceedings for recovery of the dues claimed by the petitioner - petition dismissed - Decided against Petitioner. - CO. PET. 513/2013 - - - Dated:- 25-4-2014 - Vibhu Bakhru,JJ. For the Petitioner : Mr Pankaj Bhagat. For the Respondents : Mr Rajesh Banati, Mr Ravi Kumar Aggarwal, Ms Snigdha Pandey. JUDGMENT Vibhu Bakhru, J 1. The present petition has been filed by the petitioner company under Sections 433(e) and 434 of the Companies Act, 1956 (hereinafter referred to as the Act ) inter alia praying for winding up of the respondent company on the ground that the respondent company had failed and neglected to pay a sum of Rs.4,43,857/- alongwith interest, which was claimed as due and payable by the respondent company on account of housekeeping services provided by the petitioner to the respondent for their facilities. The respondent disputes the amount claimed by the petitioner and states that only an amount of Rs.39,343/- is due and payable by the respondent to the petitioner and the respondent is ready and willing to pay the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to adjust the Debit Note dated 31.05.2011 and TDS amount of Rs.9369/-. The respondent also disputed the invoices dated 17.09.2011 and 01.10.2011 and stated that the said invoices were not payable as the same were raised after the termination of services. The petitioner, by its reply dated 12.08.2013, refuted the contentions of the respondent, however, accepted that an amount of Rs.9369/- was liable to be adjusted on account of TDS. The petitioner claimed that after adjustment of the said amount on account of TDS, an amount of Rs.4,34,488/- was payable by the respondent company. The petitioner, however, disputed the Debit note dated 31.05.2011. 5. Thereafter, the petitioner filed the present petition claiming that an amount of Rs.4,43,857/- alongwith interest is due and payable to the petitioner by the respondent company and as the respondent has failed to pay the same despite receipt of notice under section 434(1)(a) of the Act, and therefore, the respondent company is liable to be wound up. 6. In response to the present petition, the respondent has filed a reply refuting the claim of the petitioner. It is stated by the respondent in its reply that the invoices mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.08.2011 1,00,000/- 9. 01.09.2011 1,47,850/- 10 20.09.2011 2,50,000/- 11. 19.10.2011 2,50,000/- Total A 19,58,374/- Statement of TDS S. No. Date Amount in Rs. 1. 31.01.2011 3,219/- 2. 31.01.2011 3,175/- 3. 31.01.2011 45/- 4. 05.02.2011 3,313/- 5. 05.02.2011 3,183/- 6. 28.02.2011 3,288/- 7. 28.02.2011 3,352/- 8. 31.03.2011 3,275/- 9. 31.03.2011 3,342/- 10 10.05.2011 1,711/- 11. 10.05.2011 1,946/- 12. 14.07.2011 1,876/- 13. 14.07.2011 1,698/- 14. 14.07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company has failed and neglected to pay its debt. It is trite law that a claim made by a creditor would not be an admitted debt if the claim is disputed by the company. A company is deemed to be unable to pay its debts if it fails to pay the admitted debt despite a notice under Section 434(1)(a) of the Act. It is obvious that the said provision would be inapplicable in cases where the debt is not admitted. There can be no presumption of inability to pay debts where the same are not accepted as such. Therefore, the limited enquiry that has to be undertaken by this Court is to determine whether there is admittedly, a debt owed by the respondent to the petitioner, which the respondent has failed to discharge. 14. In the present case, there is no dispute that the services were provided by the petitioner to the respondent company and the respondent is liable to pay for the services being provided to the respondent. However, the respondent company has disputed the amount claimed by the petitioner is due and payable by the respondent. 15. First of all, it is contended that the invoices for the month of August, 2011 could not be raised as the services of the petitioner were terminate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioner allegedly on account of three complementary memberships granted by the respondent to one of its customers. This claim on the part of the respondent is in the nature of damages and is, prima facie, unsustainable. Both, on account of measure of damages adopted by the respondent as well as on account of remoteness of the loss alleged to have been caused to the respondent. However, it is not necessary to consider the sustainability of the aforesaid claim in the present proceedings. The fact that the respondent had raised the debit note at the material time cannot be disputed and, therefore, it is apparent that the respondent was not accepting the claim raised by the petitioner as an admitted debt. 19. It is lastly contended by the respondent that the respondent has paid an aggregate sum of Rs.19,97,592/- including the amount towards TDS to the petitioner against the invoices raised by the petitioner and not a sum of Rs.14,63,301/- as claimed by the petitioner. The learned counsel for the petitioner accepts that the details furnished by the respondent with regard to payment are correct, however, he has contended that the same also include payments on account of invoi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
