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TMI Blog2017 (7) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ding up of a Company, the Company Court will go into the question of genuineness or otherwise of the dispute raised. If the Company Court is satisfied that the dispute raised is bona fide, the Court will normally not embark upon a detailed examination of the disputes in a winding up petition. In that sense, the procedure involved in a petition seeking winding up of a company, is of a summary nature. Accordingly, the learned Single Judge, exercised discretion based upon relevant considerations in declining to admit the petition for winding up of the Company.Accordingly, we see no reason to interfere with the impugned order made by the learned Single Judge. - APPEAL NO.675 oF 2016 And CO. PETITION NO. 916 of 2014 - - - Dated:- 19-6-2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, the learned Single Judge ought to have admitted the winding up petition. 4. Mr. Jayasimha, learned counsel for the Appellant has submitted that the debit note received along with emails dated 11th March 2014 and 13th March 2014 is a document of doubtful veracity and therefore, no reliance could have been placed upon the same. He points out that the debit note, records a debt in an amount of ₹ 3,52,50,000/- as on 20th September 2013, whereas on the Company's own showing, an amount of ₹ 40,00,000/-, admittedly paid earlier finds no reflection in the said debit note. For this reason, as well, Mr. Jayasimha submits that the petition for winding up of the Company was required to be admitted. 5. Ms Shruti Sardesai, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (supra), the Hon'ble Supreme Court has held that two rules are well settled in this regard. First, if the debt is bona fide disputed and the defence is a substantial one, the Courts will not wind up the Company. The second is that where the debt is undisputed, the Courts will not act upon a defence that the Company has the ability to pay the debt but the Company chooses not to pay that particular debt. The principles on which the Courts acts are first that the defence of the Company is in good faith and one of substance, secondly, the defence is likely to succeed in a point of law and thirdly the Company adduces prima facie proof of the facts on which the defence depends. 8. Besides, it is also well settled that an order of winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies Act. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated. 9. The petitioner, seeking winding up of a company is duty bound to make full and true disclosures of all facts and circumstances, in relation to the debt claimed. Where the petitioner concealed the fact that the Company had responded to the statutory notice and also made part payment, the refusal by the Company Judge in his discretion to pass a winding up order was held not to be suffering from any error in P O Container Ltd. v. Balwant Textile Mills Ltd. 2000 (24) SCL 426 (Bom.). Further, in Agarwal Industries Ltd. v. Golden Oil Industries (P.) Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the same breath, admitted the commercial relationship between Tiryaki, Agrozan Dubai and Agrozan Singapore. Then again, there is a bare denial regards relevance of such commercial relationship to the transaction of supply of Yellow Peas. 12. Secondly, the Company along with its affidavit in reply as well as affidavit in sur rejoinder has produced documents which, prima facie suggest that the issues in relation to the supply of Yellow Peas, were required to be governed by such documents. In paragraphs 14 to 16 of the impugned order, the learned Single Judge has made brief reference to such documents and on the basis of the same, has held that this was not a case of any admitted liability, but rather, the alleged debt, is bona fide di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said that the defence raised by the Company is in the nature of a 'moonshine'. 15. Accordingly, we see no reason to interfere with the impugned order made by the learned Single Judge. However, we would only like to clarify that the observations in the impugned order, or for that matter the observations in the present order are for the limited purpose of deciding whether any case exists to order the winding up of the Company. Accordingly, the observations, need not influence the decision in the suit already instituted by the Appellant seeking recovery of the amounts, which form the subject matter of the petition seeking winding up. 16. With the aforesaid clarification, this Appeal is dismissed. There shall however be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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