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TMI Blog2018 (3) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 22-2-2018 - MR. JAYANT NATH J. Petitioner Through: Mr. V.N. Sharma and Mr. V.K. Malhotra, Advs. Respondent Through: Mr. Tanuj Khurana and Mr. Jaskaran S. Narula, Advs. JAYANT NATH, J. (ORAL) 1. This petition is filed by the petitioner under Sections 433(e), 434 and 439 of the Companies Act, 1956 seeking winding up of the respondent company. 2. The case of the petitioner is that on 12.10.2013, after visiting the site and holding discussions with the respondent Company, the petitioner quoted its rates for shifting of factory assets and machinery as per letter dated 12.10.2013. On confirmation of the rates, the petitioner company is said to have shifted 950 tons of the machinery @ 1900/- per ton and another 950 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Learned counsel for the petitioner relies upon the balance confirmation letter dated 27.02.2014 where one Mr. Akash Agarwal has on behalf of the respondent confirmed that the balance due is ₹ 7,42,516/- 6. Learned counsel for the respondent, however, submits that Mr. Akash Agarwal who is a lawyer by profession was mixed up with the petitioner and this document, namely, confirmation letter dated 27.02.2014 is a procured document. He has in court produced purported original invoice being Invoice No. 2 of 16.12.2013 purportedly raised by the petitioner for a sum of ₹ 15,75,062/-. He submits that this is the invoice that has been received by the respondent and payment has been made for the same. He also relies upon e-mails se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this communication stating that Mr.Akash Agarwal was an ex-employee and his services have been terminated. It was pleaded that a criminal complaint had been filed against him but today in court it has been pointed out that this complaint was not pursued and in any case, no copy of the same is available with the respondent. 11. The entire controversy actually centres around the invoice of the petitioner that was raised. There are available before the court two invoices, one is for ₹ 22,94,953/- filed by the petitioner. The other one is for ₹ 15,75,062/- filed by the respondent. The amount of ₹ 15,52,427/- has already been paid to the petitioner. Keeping in view the above facts, it is not possible for this court to adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on which the defence depends. 13. In Mediquipsystems (P) Ltd. vs. Proxima Medical System GMBH, (2005) 7 SCC 42 the Supreme Court held as follows:- 18. This Court in catena of decisions held that an order under Section 433(e) of 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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