9911796707
TMI Blog2012 (10) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... which is basically the designer manufactured certain materials which are required to be delivered to Hindustan Aeronautics Ltd. (HAL), the manufacturer of Helicopter. 3 There is no serious dispute with regard to the service of statutory demand notice which was replied by the Respondent/company. 4 The contract is a written document for the supply of materials. The terms and conditions are the basic factors, apart from the nature of transaction which Court need to consider before deciding the claim so raised as well as the denial so made by the Respondent/company. 5 Apart from the various terms and conditions, the relevant clauses for the purposes of the present Petition, according to me, are Clause no.3.0 (Prices) (Annexure I - Terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival submissions need to be considered for the purposes of adjudicating the claim so raised in the present Petition. The relevant extract of the Undertaking dated 29.07.2009 is as under : "We hereby further acknowledge and declare that that said amount of Rs. 81,84,426 (subject to material cost reconciliation) is due and outstanding which was not discharged by us due to financial constraints and there are no claims by us against Tata Advanced Materials Limited against the said sum for any reason whatsoever. We further acknowledge and declare that without prejudice to the claims of Tata Advanced Materials Limited, which is unhindered and absolute, Tata Advanced Materials Limited shall have the first and absolute lien on all payments rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L would not be used or appropriated for any other purpose till the entire dues of the Petitioner (TAML) is cleared, there was no occasion for the Petitioner to agree for this undertaking, but for them existing and agreed clause 5.2, as referred above. The Petitioner fully aware of the clauses and the agreement between the parties. However, to secure the amount they took this written undertaking. In a way they secured the amount also. 11 The next issue is, as per the undertaking itself, apart from the defence submission, that the payment so mentioned is subject to material cost reconciliation. In rejoinder, the Petitioner has made averments that invoices and the demand so raised, only after reconciliation. Considering the agreement itself a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of winding up as prayed, on the basis of the statutory notices, undertaking and the clauses of the agreement as referred above. The claim is premature. 14 The purpose and object of Sections/provisions in question is to see and secure the amount due and payable on the date of demand and/or at the time of filing of the Petition. Merely because in the present case, the amount is due and payable as claimed and/or as acknowledged that itself is not sufficient to pass winding up order, in the present matter. The amount even if crystalized is subject to certain agreed conditions, in that case the Court needs to consider the situation before exercising the discretion while passing the winding up order. 15 The learned counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount. 16 The Apex Court recently in IBA Health (India) Private Limited vs. InfoDrive Systems SDN BHD (2010) 10 SCC 553, while dealing with the concept of bonafide dispute, referring to winding up Petition under the Companies Act, observed as under : "23 The principles laid down in the abovementioned cases indicate that if the debt is bona fide disputed, there cannot be `neglect to pay' within the meaning of Section 433 (1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated and nonpayment of the amount of such a bona fide disputed debt cannot be termed as "neglect to pay" so as to incur t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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