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TMI Blog2014 (2) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... at would appear from the pleadings including affidavits filed by the company. The facts so discussed above, would not suggest, the petitioning creditor was successful in raising the admitted claim. In our view, the disputes so raised by the company could not be said to be sham that would deserve an order of rejection. We do not know, whether the petitioning creditor would be able to justify their claim or the company would be able to resist the same, at the final trial. It would be too early to comment on merits. We would only observe, the facts so discussed above, would not create a situation to support an order of admission. In the case of East India Wires Limited [2003 (4) TMI 463 - HIGH COURT OF CALCUTTA] a winding-up petition was filed on the just and equitable ground. In that context, the Court observed, “it was a last resort and the Court should sparingly use it as a discretionary relief”. The Division Bench of the Madras High Court in the case Sical-Cwt Distriparks Ltd.v [2009 (8) TMI 707 - HIGH COURT OF MADRAS] once again reiterated, “when the respondent who was sought to be wound-up was able to show that there was a bona fide dispute with regard to the liability in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al from any private party, far to speak of the appellants. Both these petitions would raise a claim of about ₹ 1.5 crore. However, the petitioners in these matters are different although they belong to the same group. Hence, both the winding up petitions were heard together and disposed of by a common judgment and order. The learned Single Judge by judgment and order dated September 16, 2013 declined to admit the winding up petitions. The judgment would appear from pages 285-292 of the paper book. Hence these appeals at the instance of the petitioning creditors. Mr. Jayanta Mitra, learned Senior Counsel appearing in support of the appeals being assisted by Mr. M. C. Ghosh, learned Counsel, would take us to the pleadings being winding up petitions and the affidavits-in-opposition. Mr. Mitra would contend, when a statutory notice of demand was served upon the Company, it was their obligation to react to the said notice. The Company deliberately did not reply to the said notice of demand that would raise a presumption of insolvency in accordance with the provisions of Section 434 of the Companies Act, 1956 making the winding up petition maintainable. Mr. Mitra would further c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf raise suspicion particularly when the Company categorically denied the supply. Mr. Mitra would further contend, once the Company denied existence of such document said to be confirmation of accounts, it was the duty of the petitioner to produce evidence in support thereof, they failed to do so. Commenting on the confusion that is being raised in respect of Abhimunnu, Mr. Mitra would contend, the initial appearing on the document would appear to be of Abhimunnu. Hence, the Company enquired of him whether he had signed the document or not that he denied by filing an affidavit appearing at page 121 of the paper book. He would again raise suspicion on the existence of the document appearing at page 28 that was hand delivered. Accordingly to him, the distance would not permit so prompt delivery even by hand. Reacting to the appellant s contention on the letter of notice of demand made to Expo Minerals, Mr.Mitra would contend, it would show the bona fide conduct of the company. He would lastly contend, the company is a cash rich company having earning profit. He would rely upon the balance-sheet appearing at page 122 of the appeal being APO 14/2014. The company never faced any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Cases 190. He has relied upon a passage appearing at page 203 where the learned single Judge of this Court observed, If the company has failed to apply for the necessary permission and obtain the same in due course, that does not mean that the debt is not presently payable. It is due to the default of the company that such a situation has arisen and it is a elementary principle that nobody can take advantage of his own default. Therefore, it cannot be contended now by the company that the debt is not presently payable having not produced any document before this Court to show that it made an application before the Reserve Bank of India under the Foreign Exchange Regulation Act for the remittance of the commission payable to the petitioning creditor, under the said contract between the parties, which is admitted . Above observation was made by the learned Judge in a given situation where the company took a defence, money was not presently payable in absence of permission from the Reserve Bank of India under the Foreign Exchange Regulation Act then prevalent. The learned Judge ultimately held, it was nothing but a ploy to avoid the just claim of the petitioner. In this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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