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TMI Blog2017 (4) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that the payment of ₹ 70 lakhs was part payment of the alleged amount of ₹ 2,33,06,154/-. It further claimed that the payment of ₹ 70 lakhs was, in fact, full and final payment of the amount owed by the respondent-Company to the petitioner-Company. Therefore, it further denied the fact that on 8th of May 2014, an amount of ₹ 1,63,,06,154/- was owed by the respondent-Company to the petitioner-Company. Since the denial is an absolute one, since the denial has been made in reply to the statutory notice issued by the petitioner-Company, the learned counsel for the petitioner is unjustified in claiming that denial is an after-thought. Considering the fact that respondent-Company has denied that it owes any debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d up equity shares of ₹ 10/- each. 3. Furthermore, according to the petitioner, in January, 2013, Mr. Naseer Ahmed, Managing Director of the respondent-Company, along with one Mr. Thiagarajan Manickam, Chief Financial Officer, approached the petitioner- Company for engaging its services towards advertising and publicity of the respondent-Company, with an intent ion to increase its brand value, and create awareness among the public at large. Since the respondent-Company was also coming up with a public issue of equity shares during the same period, the Company further desired to engage the services of the petitioner for publication of notices for the public issue of equity shares of the Company, in various newspapers as well. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner-Company. Consequently, the petitioner- Company has filed a case under Section 138 r/w Sect ion 142 of the Negotiable Instruments Act, against the respondent- Company. 6. Considering the fact that huge amount was still owed by the respondent-Company to the petitioner, it issued a statutory notice on 30.03.2016. However, despite issuance of the said notice, no action has been taken by the respondent- Company. Instead, on 28.04.2016, the respondent-Company sent a preliminary reply to the statutory notice sent by the petitioner-Company. Subsequently, on 10.05.2016, the respondent-Company replied to the notice sent by the petitioner-Company denying their liability to pay any amount. Hence, the present petition for winding up before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition is not necessary. Only civil suit would lie against the respondent-Company. Therefore, the present petition is not maintainable before this Court. 8. On the other hand, the learned counsel for petitioner- Company claims that even after the payment of ₹ 70 ,00,000/- by the respondent-Company, the respondent-Company h ad issued two cheques for ₹ 30,00,000/- each. Thus, there was an implied admission made by the respondent-Company with regard to the debt owed by it to the petitioner-Company. Secondly, the reply given by the respondent-Company denying its liability to pay the debt is an after thought. Therefore, the said defense cannot be accepted. Thirdly, relying on the case of Vijay Industries v. NATL Technolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 70 lakhs by the respondent-Company to the petitioner-Company, whether any outstanding dues is still existed against the respondent-Company towards the petitioner-Company or not? 11. Admittedly, on 30.3.2016, the petitioner-Company had sent a statutory notice to the respondent-Company. In Para-5 of the said notice, the petitioner-Company h ad claimed that the respondent-Company owe them an amount of ₹ 1,63,06,154/- as on 8th of May 2014. The said para has been denied specifically by the respondent-Company in its reply dated 10th of May 2016. The respondent-Company, has denied that the payment of ₹ 70 lakhs was part payment of the alleged amount of ₹ 2,33,06,154/-. It further claimed that the payment of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a proper remedy, where the relevant evidence can be led by the parties and the facts alleged can be proved by them. 15. Similarly, in the present case, since evidence, both oral and documentary, needs to be led in order to decide the disputed questions of fact mentioned herein above, clearly the winding up petition is not the proper remedy. 16. The learned counsel for the petitioner has relied on the case of Vijay Industries (supra), in order to plead that defence taken by the respondent-Company has to be fortified. However, the case of Vijay Industries (supra) is inapplicable on two grounds: firstly, there is a difference of facts between the present case, and the case of Vijay Industries (supra). In the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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