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TMI Blog2016 (12) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... urav Tangri, Advocate RAKESH KUMAR JAIN, J.(Oral) This petition is filed under Sections 433(e), 434(F) and 439 of the Companies Act, 1956 (for short, `the Act') read with Rule 9 of the Companies (Court) Rules, 1959 to wind up the respondent- Company for having failed to pay the admitted debt. In short, it is submitted that the petitioner- Company is in the business of manufacturing and repair of transformers, stabilizers etc. The respondent- Company placed an order on 17.11.2011 for one transformer capacity 215 KVA 11/0.433 which was allegedly supplied vide invoice No.000025 dated 30.11.2011 which includes BT 55 transformer oil 300 ltr. for a sum of ₹ 3,37,600/-. It is further alleged that the respondent- Company gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase the transformer from M/s Nucon Power Controls Pvt. Ltd. for a sum of ₹ 2,85,979/- despite the fact that a sum of ₹ 2,20,000/- has already been paid to the petitioner. The petitioner filed rejoinder in which it is clarified that it had received ₹ 2,20,000/- but it is denied that they have not delivered the transformer purchased by the respondent. Counsel for the petitioner has thus submitted that once transformer has been delivered, invoice has been admitted by the respondent, the part payment is also admitted, the respondent is liable to pay the remaining amount which is an admitted debt for which the petitioner has a right in terms of the provisions of the Act. On the other hand, counsel for the respondent su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to pay its debts. The use of the word unable is very significant. It is to be distinguished from other words like `refusing to pay' or `neglecting to pay' or `disputing its liability to pay'. In the context, the expression unable to pay indicates that the inability to pay arises out of the solvency or financial position of the company. The expression unable to pay its debts occuring in clause (e) of Section 433 is statutorily defined in Section 434. The relevant clause for the present case is clause (a) of sub-section (1). In order to attract its applicability inter alia, it must be proved that the company is indebted to the particular creditor. It is well settled law that machinery for winding up will not be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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