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TMI Blog2016 (1) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... or short 'the Act'). The petitioner is a travel agent which was looking after the needs of the respondent in the matter of arranging air tickets, visas, etc. The respondent has approached the petitioner and entrusted the work of arranging visa to its Managing Director in February, 2014, for his visit to France from 17.3.2014 to 22.3.2014. It is the pleaded case of the respondent that on 25.02.2014, all the relevant documents including the passport of its Managing Director were handed over at the local office of the petitioner at Hyderabad for processing visa. However, the respondent could secure visa to its Managing Director only on 25.3.2014. As the petitioner was claiming a sum of Rs. 10,97,200/- by sending invoices, the respondent issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner-company due to the loss suffered by the respondent on account of the negligent handling of the visa issue by the petitioner. He has relied upon certain judgments which include the judgment of Calcutta High Court in Martin & Harris Pvt Ltd Vs. Organon (India) Pvt Ltd 2014 LawSuit (Cal) 961 and that of the Patna High Court in BOC India Limited Vs. Zinc Products and Company Pvt Limited 1998 LawSuit (Pat) 388 to fortify his submission that one of the tests to be applied, in order to know whether denial of debt is bona fide or not, is whether the dispute is raised by the respondent for the first time in the winding up proceedings or it was raised even before presentation of the winding up petition. As noted hereinbefore, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent has raised a serious issue on the alleged failure of the petitioner to secure visa for its Managing Director. The petitioner has not even responded to the said letter for more than four months before it has denied any failure or liability on its part. Be that as it may, as the respondent has raised the dispute much before the contemplation of the Company Petition, it cannot be said that the denial of debt by it is not bona fide and the same is intended to evade the legally payable debt. In Martin & Harris Pvt Ltd (supra), the Calcutta High Court has dealt with a case where the respondent before it has claimed adjustment of the damages suffered by it, on account of wrongful termination of contract by the petitioner therein, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up petition should not be allowed as the liabilities are admitted. Furthermore, the petitioning-creditor have made a counter-claim including the amount admittedly adjusted against the claim made in the suit which cannot be said to be unreal, undisputable and moonshine." Following the legal position which emerged from the above-mentioned judgments, I am of the opinion that though the claim for set-off or adjustment is made by the respondent towards the alleged damages against the amount payable by it, for the limited purpose of adjudicating the winding up petition, this Court cannot treat such a claim for set-off or adjustment as lacking bona fides. Whether the respondent is really entitled to such setoff or adjustment needs to be adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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