9911796707
TMI Blog2018 (7) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a specific provision in the agreement between the parties. Petitioner has failed to show any provision in the vendor agreement dated 29.10.2011 which obliges the respondent to take back the surplus stocks lying with the petitioner and refund the consideration paid. The petitioner however states that this condition was mutually agreed between the parties and the respondent is bound by the terms and conditions of the said agreement that was agreed upon between the parties. Under section 19 of Sales of Goods Act, 1930, the property in the goods is transferred to the buyers at such time as the parties to the contract intended it to be transferred. In the present facts, there is nothing to show that when the goods were purchased by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent company. 3. However, over a period of time it transpired that the books purchased by the petitioner from the respondent company were not moving and had no buyers/takers in the market. As a consequence, the petitioner company was left with a huge inventory and piled up stock of the unsold books. Hence, the petitioner requested the respondent company to take back the unsold books and remit the amount due on account of return of the books. It is pleaded that the unsold books were sent back to the respondent and hence, the respondent is now liable to pay to the petitioner a sum of ₹ 66,27,991/-. It is pleaded that this amount has been duly acknowledged by the respondent company. Subsequently on 04.02.2016 a winding up notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. To the same effects are some of the emails which were sent later in time which show the stand of the respondent company that they would adjust the payment against future orders that may be received. 9. In fact, I had pointed out to the learned counsel for the petitioner that the respondent would be obliged to take back unsold books and refund the prices only in case there is a specific provision in the agreement between the parties. The learned counsel for the petitioner has failed to show any provision in the vendor agreement dated 29.10.2011 which obliges the respondent to take back the surplus stocks lying with the petitioner and refund the consideration paid. 10. The learned counsel for the petitioner however states that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 danger of abuse of winding-up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt. 14. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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