9911796707
TMI Blog2014 (5) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... needs to be addressed in the present case is whether the defense raised by the respondent is bonafide or a sham defence. And, whether the petition needs to be admitted in view of the defence raised by the respondent. 3. Briefly stated, the relevant facts are that the petitioner company provided housekeeping services to the respondent company at its facilities: Gym Spa Salon Health Care, situated at B-376, Meera Bagh, Paschim Vihar, New Delhi-110063 and also at B-2/22, Ashok Vihar, Phase II, New Delhi-110052. It is stated by the petitioner in paragraph 11 of the petition that the petitioner company raised invoices aggregating an amount of Rs.9,73,442/- for the housekeeping services provided at B-2/22, Ashok Vihar, Phase-II, New Delhi-110052 and Rs.9,33,716/- for the housekeeping services provided at B-376, Meera Bagh, Paschim Vihar, New Delhi-110063. Thus, in all, the petitioner raised invoices for an amount aggregating to Rs.19,07,158/- . It is further stated that out of the said sum of Rs.19,07,158/-, the respondent company had paid an amount of Rs.14,63,301/- and defaulted in making payment for the balance sum of Rs.4,43,857/-. It is stated that the respondent company terminate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further stated that the invoices of the petitioner for the month of August 2011 are not payable as the services of the petitioner were terminated in July 2011. 7. The respondent has also further stated that the invoices for the month of August 2011 have been raised twice. Whilst one invoice is with taxes the other is without taxes. It is stated that the petitioner had earlier raised invoice nos.811/532 and 811/533 dated 01.09.2011 for an amount of Rs.81,012/- and Rs.74,916/- respectively (with taxes). Thereafter, the petitioner again raised invoice nos.811/532/01 and 811/533/01 dated 01.09.2011 for an amount of Rs.73,447/- and Rs.67,920/- respectively (without taxes). It is contended that, as per the averments made in the petition, the petitioner had added the amount mentioned in the invoices raised subsequently without cancelling the earlier invoices. It is, therefore, contended that the claim of the petitioner is ex facie erroneous and the proceedings in the nature of the winding up are not maintainable. 8. It is stated by the respondent that the petitioner has wrongly stated in the petition that the respondent had only paid a sum of Rs.14,63,301/- out of Rs.19,07,158/-. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and the amount towards TDS, the respondent is liable to pay a amount of Rs.39,343/- which the respondent is ready and willing to pay to the petitioner. 11. The petitioner in its rejoinder has stated that no invoices have been raised for the same services. It is submitted that, due to the inadvertent error of the finance section of the petitioner, the initial invoices were raised only towards the half of the man power deployed, and later the mistake was rectified by the petitioner by raising the bills for the remaining man power. It is submitted that both the bills together reflected that amount due on account of the service provided to the respondent in the month of August 2011. It is further submitted that the attendance of the entire work force deployed by the petitioner was duly verified by the respondent. 12. I have heard the learned counsel for the parties. 13. A petition for the winding up of the company under Section 433(e) of the Act is maintainable if the company is unable to pay its debt. A company is deemed to be unable to pay its debt, if a demand is made on the company for the amount due and payable by the company and the company has failed and neglected to pay it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner that the initial invoices were raised only towards the half of the man power deployed and the amount mentioned in the second invoice was for the remaining power. 17. The contention whether the invoices for the month of August 2011 have been raised twice over would have to be examined by ascertaining the manpower deployed by the petitioner. It would be necessary to examine whether the two disputed invoices represented the cumulative amount due to the petitioner for the services rendered or whether the second invoice had been raised for the same service which had been billed for in the first invoice. It is contended by the petitioner that the said invoices could be verified from the attendance sheet of the staff which had been accepted by the respondent. However, for this purpose, it would be necessary to conduct the detailed enquiry which is not within the scope of the present proceedings. 18. Thirdly, it is contended that the petitioner has not accounted for the debit note dated 31.05.2011 amounting to Rs.97,850/-. The debit note is disputed by the petitioner. A sum of Rs.90,000/- has been debited to the account of the petitioner allegedly on account of three complementary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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