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TMI Blog2014 (4) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent has failed to make the payment as the cheque had not been honoured on presentation. The obligation of the respondent was to pay the entire consideration and on non-realization of the cheque the respondent was obliged to replace the same or remit the consideration through other means. However, it is apparent from the facts of the case that the respondent has deliberately avoided making payment to the petitioner. And, in absence of receiving the entire consideration, the petitioner was not liable to install the machine in question. The disputes raised by the respondent are a mere ruse to avoid paying the amount due to the petitioner. In this view, the respondent is deemed to be unable to pay its debts on account of its failure to discharge the debt owed to the petitioner. In view of the above, the present petition is admitted. The petitioner is directed to publish the citation in "Statesman" (English) and "Jansatta" (Hindi). The citation be also published in Delhi Gazette for hearing to be held on 17.07.2014.The Official Liquidator is appointed as a Provisional Liquidator to take charge of the assets and books of accounts of the respondent company. - CO.PET. No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the respondent to immediately make the balance payment. 3.4. The machine was delivered to the respondent on 01.12.2011 and an invoice being invoice no.481 dated 01.12.2011 was raised by the petitioner. The respondent also issued a cheque bearing No.074699 dated 29.08.2011 for a sum of ₹ 2,20,320/- drawn on Allahabad Bank, IFB, New Delhi Branch, Allahabad Bank Building, Ist Floor, 17 Parliament Street, New Delhi. While it is the case of the petitioner that the said cheque was handed over to the petitioner on 01.12.2011 at the time of delivery of the machine, the respondent has asserted that the said cheque was handed over to the petitioner in August 2011. 3.5. On 18.01.2012, the petitioner received a letter from HDFC bank with reference to the said cheque informing that on 03.12.2011, the said cheque was returned unpaid by the drawee bank with a remark Instrument Mutilated, required bank confirmation . The said bank also informed the petitioner that the physical cheque had not been returned to them and referred to the said cheque as being misplaced . 3.6 It is stated by the petitioner that the petitioner was in continuous touch with the respondent for replacem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Companies Act, 1956, would not be negated. This has been explained by the Supreme Court in the case of IBA Health (I) (P) Ltd. v. Info-Drive Systems Sdn. Bhd., 2010 10 SCC 553 and the court has held as under: 20. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s payable on dispatch of the said machine. It is further admitted that a cheque for the balance consideration was also issued by the respondent to the petitioner. The petitioner has contended that the said cheque was received at the time of delivery of the machine. The respondent has disputed this contention and stated that the cheque was handed over much earlier in August, 2011 as, admittedly, the cheque in question was dated 29.08.2011. This contention raised by the respondent also does not seem to be correct as there would be no occasion for the petitioner to send an e-mail dated 03.10.2011 calling upon the respondent to make the balance payment in the event that it had received the cheque. The e-mails dated 08.08.2011 03.10.2011 have not been disputed by the learned counsel for the respondent. It is thus apparent that the petitioner had been pursuing with the respondent for issuing the balance consideration in order to dispatch the machine in question. It is also not in dispute that the cheque in question was presented to the respondent's bankers on 03.12.2011. There is no conceivable reason why the petitioner would not have presented the cheque earlier in the event the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon. Even otherwise, if one examines the matter closely, one finds that the letters only seek to create an illusion of dispute where in fact none existed at the material time. The respondent has also sent a letter dated 15.02.2012 calling upon the petitioner to install the machines. Thus, indisputably the respondent had accepted the delivery of the machine and even as late as 15.02.2012 was calling upon the petitioner to install the same. In the circumstances, the dispute that the respondent was not liable to pay for the same on account of a delay in delivering the same cannot be accepted. ( 12. ) In my view, this is a case where the respondent has attempted to create a dispute only to avoid making payment to the petitioner. Shorn of the illusion that is sought to be created by the respondent by the abovementioned disputed letters, the indisputable facts are (a) that the petitioner placed an order for the machine, (b) the petitioner was obliged to pay 10% in advance and the balance 90% on dispatch of the machine, (c) that the respondent received the machine but has failed to pay the consideration for the same. The contention that since the machine had not been installed by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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