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TMI Blog2016 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... wo parameters, i.e., whether the dispute raised by the defence is bonafide or not, much less the liability is disputed or not. In order to appreciate the aforementioned two questions posed, it would be apt to refer few facts. The case set up in the present petition seeking winding up of the respondent company is that the petitioner company is a creditor of the respondent company on account of the business dealings as per their balance sheet. It has been stated that the respondent company, vide Purchase Order bearing No.NLL/R.M./U02/086/2010-2011 dated 10.7.2010 (Annexure P-1) had placed an order with the petitioner company for supply of 3000 Kgs. @ Rs. 9500/- per unit (kg.) totalling to Rs. 2,85,00,000/- of Cefixime Trihydrate (for short "CT"). In pursuance to the order placed by the respondent company, the petitioner company supplied the requisite material against different invoices (Annexures P-2 to P-8), which are stated to have been received by the respondent company. The same are reflected in Para 6 of the petition. It has been further stated that the material supplied was sent to the respondent company through credit and the price of the material was worth Rs. 3,20,64,210/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y never assured regarding the supply of the said material. It is in these circumstances, the company petition, aforementioned, was filed. Upon notice, the respondent company appeared and filed a detailed reply taking various preliminary objections, vis-a-vis maintainability of the petition under Sections 433(e), 434 and 439 of 1956 Act by stating therein that prior to filing of the winding up petition, the respondent company had duly notified the petitioner company way back on 28.9.2010 regarding the contractual breaches by the petitioner company and failure to honour the representations, warranties and commitments, resulting into causing of huge financial loss. It has also been stated that the petitioner company failed to comply with the legal notice (Annexure P-14) and in this regard, the respondent company filed a civil suit on 15.12.2011 (Annexure R-1) and the present petition is a counter blast to the legal notice and, thus, as per the settled law, winding up petition cannot be entertained where the alleged debt is disputed. It has also been stated that the petitioner company has withheld the factum of filing of the suit as the winding up petition was filed on 22.2.2012 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and since the respondent company has failed to discharge the obligation, the defence raised is a malafide one, much less an after-thought and, therefore, the second rule is applicable and the judgment cited supra would be applicable and the company petition be ordered to be admitted. Mr.Atul V.Sood, learned counsel appearing on behalf of the respondent company submits that the defence raised in the present petition is a bonafide as it is a case of set-off, inasmuch as that the respondent company vide e-mail dated 17.8.2010 issued a Purchase Order dated 16.8.2010 of 6 MT of CP @ Rs. 12,250/- per Kg., which was in pursuance to various correspondences exchanged between the parties starting from Page 226 of the paper book, the details of which are given herein under:- 1) On 27.7.2010, the petitioner sent an e-mail to the respondent company regarding the basic rate of CP at the rate of Rs. 12750/- per Kg.+ED 10.30%+CST 2% against form Rs. C' and delivery as per schedule and the payment to be made in 60 days; 2) Vide e-mail dated 27.7.2010, the petitioner company stated that it would not be possible for them to offer less than given quote. For the sake of brevity, contents of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i
From: "sandeep" X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the respondent company needed minimum 2 MT per month and ultimately vide e-mail dated 30.8.2010, the petitioner company despatched the schedule for September. The contents of letters dated 18.8.2010 and 30.8.2010, ibid, read thus:- Letter dated 18.8.2010
From: "Renuka" X X X X Extracts X X X X X X X X Extracts X X X X ..... stage that the remedy of the Company is not available in seeking the damages for illegal and wrongful termination. The Company has approached the Bombay High Court by filing the civil suit for recovery of money on account of damages though there has been some admission on the part of the Company for such an amount payable to the petitioner but the same has been adjusted against the claim made in the said suit. The adjustment of an amount when the claim made is much more, is not impermissible under the law. It does not invite the Company Court to pass an order for winding up of the Company as the liability is admitted. The Andhra Pradesh High Court in case of Smt.Vijayalakshmi v. Hari Hara Ginning & Pressing reported in MANU/AP/0394/1999: (1999) 96 Company Cases 723 held: "Thus, even if a part of the liability is admitted, that itself will not constitute an admitted amount due which a company is unable to pay nor can it be inferred that the company's liabilities are more than its assets and the Company is not able to discharge its liability or it requires the protection of the debtors by admitting the company petition for liquidation. Thus, we find no ground to interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, in our opinion, it cannot be said that a such a claim is frivolous or made with an intention to defeat the claim of the respondent or without any merit. The respective cases as made out by the parties require thorough investigation which is only possible in a regular action. 32. In our opinion, the questions sought to be raised in the instant case are questions which, if established, may constitute a valid case for the company. Whether the company will succeed in establishing its case or not will naturally depend on the result of the suit. We are fully convinced that the petitioning-creditor's debt has been disputed bona fide and there is a prima facie case for the appellant's counter-claim. In view of such claims and cross-claims by the parties, we are of the opinion that the learned judge was not right in admitting the petition for winding up and in giving directions for advertisement." I have heard the learned counsel for the parties and appraised the paper book and am of the view that the present case does not fall within the parameters of admitted liability enabling the Court to pass the winding up order, much less admit the petition as the defence raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeep" X X X X Extracts X X X X X X X X Extracts X X X X
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