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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 ..... tially formed as a Partnership Firm on 01.12.1992, in the name and style of 'Scotts Garments'. In March, 2002, it was incorporated as a Private Limited Company in the name and style of 'Scotts Garment Private Limited'. According to the petitioner, the authorized capital of the Company as on 31st March, 2014 was Rs. 44,00,00,000/- divided into 4,40,00,000 equity s hares of Rs. 10/- each. The paid-up capital of the Company a s on 31st March, 2014 was Rs. 28,47,73,800/- divided into 2,84,77,380 paid up equity shares of Rs. 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest made by the petitioner-Company, the respondent- Company issued two Cheques for an amount of Rs. 30,0 0,000/- each on 15.07.2015. However, when the cheques were deposited for encashment, both the cheques were bounced for "insufficient funds". Therefore, the petitioner-Company immediately approached the respondent-Company with regard to the payment of the Cheque amount. However, the respondent-Company did not take any action on the request made by the petitioner-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 issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... needs to be cleared, the question of winding up of the company would not even arise. Lastly, relying on the case of M/s. Rapid Radio Solutions Pvt. Ltd. v. M/s. Ecole Solutions Pvt. Ltd. (COP 81/2014, decided by this Court on 01.07.2016), the learned counsel has pleaded that where the debt has not been admitted, where there are disputed questions of facts, where the claim made by the petitioner-Company needs to be established, winding up 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 Rs. 70 ,00,000/- by the respondent-Company, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration are: whether the petitioner-Company, and the respondent-Company have initially entered into a Marketing Budget, which was duly approved by the Chief Financial Officer, and the respondent-Company or not? Secondly, under what circumstances the two cheques dated 15th of July 2015, were submitted by the respondent- Company to the petitioner-Company? Thirdly, and most importantly, after the payment of Rs. 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, the winding up petition is an illsuited remedy and it cannot substitute a regular trial or suit. Questions of fact about the execution of the contract and implementation thereof, do arise in such cases and winding up petition cannot be converted into a trial of such claims and rival claims between the parties. Only civil suit between the parties can be said to be 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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