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TMI Blog2015 (7) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... and their peripherals on credit basis. That M/s. SARK Systems India Ltd., assured the petitioner of prompt payment and that it induced and lured the petitioner to supply computers and their peripherals to it on credit basis under a running account. That the petitioner used to supply material under invoice, which was acknowledged by M/s. SARK Systems India Ltd., upon receiving the goods and that several cheques were issued by the said company, which were dishonoured for want of sufficient funds. The petitioner has referred to as many as 15 cheques for a total sum of Rs. 1,30,70,000 which were allegedly dishonoured for want of sufficient funds in the account of the respondent, and pleaded that whenever the same was intimated to SARK Systems I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner has filed C. C. No. 17 of 2012 in the court of the XI Additional Chief Metropolitan Magistrate, Secunderabad, against the respondent, under section 138 of the N. I. Act, for dishonouring the cheque and that it has also got statutory notice dated December 4, 2011, issued to the respondent and also M/s. SARK Systems India Ltd., demanding payment of Rs. 2,35,72,083 with interest at the rate of 21 per cent. per annum from December 1, 2011, till the date of payment within three weeks from the date of receipt of notice and that failing which action will be taken up for winding up of the respondent. That the respondent has received the said notice, but failed to reply or pay the amount. Therefore, the petitioner has filed this petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods and that in view of the poor quality of goods supplied by the petitioner, the respondent has stopped purchasing computers with effect from October 2008. Along with the counter-affidavit, the respondent has filed annexure showing that a sum of Rs. 25,59,240 was paid in excess to the petitioner. 4. The respondent has also filed additional counter-affidavit, wherein it has pleaded that as per the statement enclosed to the additional counter-affidavit, the petitioner is liable to pay Rs. 25.60 lakhs for supplies under the running account apart from an unsecured advance of Rs. 2 crores. As regards letters dated December 29, 2009 and December 30, 2009, wherein the debt was purportedly admitted, it is averred that the proprietor of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the chairman of the respondent-company on December 30, 2009. That cheque dated July 20, 2011, for a sum of Rs. 2,18,64,235 purportedly issued by the chairman of the respondent has been dishonoured, for which the petitioner has filed a criminal complaint under section 138 of the N. I. Act, which is pending. That the respondent has received legal notice issued under the provisions of the N. I. Act and also the statutory notice under the Companies Act, 1956 (for short "the Act"), to which it has not given any reply. It is also not in dispute that except claiming that the respondent has overpaid to the tune of Rs. 25,59,240 neither any notice was issued to the petitioner for payment of the said money nor any proceedings have been initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been paying the debt (see Amalgamated Commercial Traders (P.) Ltd. v. A. C. K. Krishnaswami [1965] 35 Comp Cas 456 (SC), IBA Health (I) (P.) Ltd. v. Info-Drive Systems Sdn. Bhd. [2010] 104 SCL 367 (SC) and Indiabulls Housing Finance Ltd. v. South Asian Agro Industries Ltd. [2014] 187 Comp Cas 205 (T & AP). 9. For considering admission of the company petition, this court has to primarily examine whether the debt is a bona fide disputed one or not. It needs to be pointed in the first place that the respondent has been improving its case from stage to stage. It has failed to issue any reply to the two statutory notices received by it. No explanation whatsoever is forthcoming from the respondent for its failure to reply. Any prudent compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for Rs. 2.47 crores and August 14, 2008, for Rs. 1.36 crores in the additional counter-affidavit only on the ground that they were not reflected in the VAT audit conducted by the State Government. It has not come out with any specific plea that those invoices were either fabricated or concocted. 10. In the above facts and circumstances of the case, this court is of the opinion that the denial of debt by the respondent is not bona fide and that the same is a cloak or moonshine to evade payment of an admitted debt. Having admitted in categorical terms that it is liable to pay Rs. 1.50 crores subject, however, to reconciliation, the respondent cannot resile from the said admission and seek to deny the debt. The law is well-settled that wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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