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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 ..... t claimed by the respondent is not an afterthought and that it has been consistent in its stand in this regard much before the filing of the winding up petition. On these facts of the case, this Court is of the opinion that as there is a serious dispute regarding the debt claimed by the petitioner, the remedy under Section- 433(e) read with Sections-434(1) (a) and 439 of the Act is not an appropriate one and no order for winding up of the respondent for non-payment of the admitted debt can be passed. The Company Petition is, accordingly, dismissed, however leaving the petitioner free to avail common law remedies for recovery of the amount claimed by it from the respondent. - COMPANY PETITION No.158 of 2015 - - - Dated:- 5-10-2015 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss loss to an extent of ₹ 40 lakhs. The respondent has relied upon Clause-9 of the agreement, dated 19.6.2012 and claimed that because of the failure of the petitioner to secure visa to its Managing Director, it is liable to pay damages under the said Clause and has, accordingly, issued notice to the petitioner on 22.4.2015. More than four months after receipt of the said notice, the petitioner has replied to the same, wherein while denying any negligence on its part in securing visa to the Managing Director of the respondent, it has relied upon Clause-8.1 of the agreement, dated 19.6.2012, and stated that the respondent is not justified in withholding the amount admittedly due and payable by it. Learned counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a set-off or not as, such a question does not arise in a Company Petition filed for winding up of the respondent for non-payment of the alleged debt, it would, however, like to examine the above-mentioned Clauses only for being prima facie satisfied as to whether the claim for set-off made by the respondent has any basis and consequently, denial of the debt by it is bona fide or not. In a Company Petition filed for winding up of the company for non-payment of the debt due to the claimant, if the company raises a bona fide dispute with regard to the claim of its creditors, the Court shall not adjudicate such disputed claim (See M/s Madhusudan Gordhandas and Co. Vs. Madhu Woollen Industries Pvt Ltd (1971) 3 SCC 632) and Amalgamated Comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are payable by each to the other, they are both entitled to mutual adjustments of the monies provided they are really due and recoverable. The distinction between payment and adjustmnet is that payment is made to the creditor while the adjustment is made by the debtor himself. Although it is not called 'payment' in common parlance yet it undoubtedly partakes the character of payment. At all events, it cannot be called a claim for set off, nor can it be said to be a counter-claim, as the defendant does not seek enforcement of his claim, and, therefore, Courtfee is not due. On a general principle a person is entitled to pay to himself that amount which is due to him from another, if he has in his hand monies belonging to that oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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