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TMI Blog2010 (10) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... rty was given to the petitioning creditor that the said order will in no way prevent him to initiate any other appropriate proceeding including a Civil Suit. 2. Being aggrieved, this appeal has been filed from the said order dated 7th September, 2009 in Company Petition No. 334 of 2008. 3. The facts of the case briefly are as follows: 4. The case of the petitioning creditor/Appellant herein is that the petitioning creditor sold and delivered to the company a total quantity of 3683.640 Metric Ton (one rake of 58 boxes) of Grade-E coal contained in 56 BOXN. The said goods were delivered at Rukni South Eastern Railway Siding. The value of the said coal is amounting to ₹ 87,30,22/- and further interest thereon at the agreed rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1956 which was duly replied on behalf of the company and the petitioning creditor and, thereafter, filed his winding-up petition. 6. In the affidavit-in-opposition the plea was taken is that on or about 8th March, 2008 the company, upon negotiation between the company and Ashok Kumar Kathotia, an agent of the petitioning creditor issued purchase order for 2370 MT of coal. Accordingly, coal were supplied on or about 16th March, 2008. Since the coal was poor quality and not as per the order specification, that was rejected. This was duly intimated to Ashok Kumar Kathotia by a letter dated 29th March, 2008 with a Rejection Note dated 28th March, 2008 and further requested him to take back the materials from the Company's plant. On 8th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly it is submitted that it was the duty of the Court to pass a winding-up order in favour of the Appellant/petitioning creditor. 12. The findings of the Hon'ble First Court is that Ashok Kumar Kathotia acted on the basis of the letter dated 1st August, 2008 of the Appellant which refers to the word representative and on such ground the Court came to the conclusion that Ashok Kumar Kathotia did something in the transactions itself. 13. On the contrary, it was totally denied by Mr. S.B. Mookherjee, learned Senior Counsel, appearing on behalf of the Respondent company. 14. It is submitted on behalf of the Respondent that the petitioning creditor by two letters both dated 11th March, 2008 made its offer for sale of coal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. From the facts pleaded in the petition, the Hon'ble First Court came to the conclusion which is reproduced hereunder: However, on a plain reading of the petition for winding up, I find that the Petitioner himself has raised disputes which can only be properly adjudicated on a civil trial and not in a proceedings for winding up of the Company. The question whether the Company- has any legal obligation to discharge the alleged debt mentioned in the petition needs be decided with some degree of certainty and that can more appropriately be done by a Trial on evidence. 18. Therefore, the Court came to the conclusion that first, it has to be established whether Ashok Kumar Kathotia had any role to. play in the transaction or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56; 3. Madhusudan Gordhandas Company v. Madhu Woolen Industries, reported in AIR 1971 SC 2600; 4. Mediqup Systems Pvt. Ltd. v. Proximo Medical System G.M.B.H., reported in AIR 2005 SC 4175; 23. After considering all these decisions and the facts of this case, we do not have any hesitation to hold that after applying the test laid down in the case of Madhusudan Gordhandas Company (supra), the Supreme Court held as follows: (a) Two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the Court will not wind up the company. The Court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain the wishes of the creditors. The wishes of the shareholders are also considered, though, perhaps the Court may attach greater weigh to the views of the creditors. The law on the point is stated in Palmer's Company Law, 21st edition, page 742, as follows: (d) This right to a winding-up order is, however, qualified by another rule, viz., that the Court will regard the wishes of the majority in value of the creditors, and if, for some good reason, they object to a winding-up order, the Court in its discretion may refuse the order. (e) The wishes of the creditors will however be tested by the Court on the grounds as to whether the case of the persons opposing the winding-up reasonable; secondly, whether there are matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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