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TMI Blog2017 (12) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... n view the nature of the present proceedings, it is appropriate that the petitioner be left to take steps under the civil proceedings, as per law. It cannot be said that there exists any debt which the respondent is unable to pay. There is no merit in the preset petition and same is dismissed. - CO.PET. 936/2015 and CA 3694/2015 - - - Dated:- 11-12-2017 - MR. JAYANT NATH J. Petitioner Through Mr. Sunil Prakash Sharma, Adv. Respondent Through Mr. Samar Bansal, Mr. Kartik Nagarkatti and Ms. Aditi Sharma, Advs. JAYANT NATH, J. (ORAL) 1. This company petition is filed under Sections 433 (e) read with section 434 (1)(a) of the Companies Act, 1956 seeking to wind up the respondent Company. 2. The case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletion of the work and a request was made to the petitioner to send manpower to the site of the project otherwise the respondent Company will claim loss and damages. Similar reliance is also placed on a communication dated 20.03.2012 which is said to have been sent to the petitioner pointing out that the entire contract was to be completed before March 2010 but till date neither the work has been completed nor any effective measures have been take to complete the work. The petitioner was requested to depute labour at site on or before 25.03.2012 and complete the work without any further delay failing which the contract would stand cancelled. Reliance is also placed on a work order dated 15.12.2012 placed on M/s Ganapati Engineering Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression 'unable to pay its dues' in Section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilized merely as a means for realising debts due from a company. 19. The respondent is not a creditor and the appellant is not a debtor in so far as US $ 11000 is concerned. The defence raised by the appellant is a substantial one and not mere moonshine which is to be finally adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execute the work or has received the communications dated 02.09.2009, 09.10.2009, 12.08.2011, 20.03.2012 and 07.09.2012. However, I cannot help noticing that other than a mere bald denial, there is no attempt to explain as to how and when the petitioner completed the work. On completion of the work in all contracts normally a completion certificate or other document is issued by the architect or the engineer in charge indicating that the work has been completed. No such document or any other like document is available on record to support the contention of the petitioner that the work was completed to the satisfaction of the concerned architect/official of the respondent. In the absence of any such document on record, keeping in view the na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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