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TMI Blog2018 (9) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... table for passing an appropriate order of winding up. Accordingly I order winding up of the respondent-Company in accordance with the provisions of the Act read with the Company Court Rules, 1949. - Company Petition No. 5/2011 - - - Dated:- 27-8-2018 - Prakash Shrivastava J. For the Petitioner : Shri U.K. Chouksey learned counsel For the Respondent : Shri Vijayesh Atre learned counsel ORDER Shri Shekhar Bhargav learned senior counsel with Shri Anuj Lahoti for proposed intervenor MPFC in IA No. 3232/17. 2/ Heard on IA No. 4294/18 for recall of order 7/11/2012 as also for appointment of Official Liquidator. 3/ This company petition has been filed under Section 433/ 434 of Companies Act, 1956 for winding up of respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tember 2010 but no reply was received, which reflect respondent's inability to pay, hence the present winding up petition was filed. 6/ The respondent by filing the reply dated 3/12/2012 had taken the plea that respondent is a sick company and proceedings before the AAIFR in appeal are pending, therefore, the winding up petition is not maintainable. Further plea was raised that the amount is not payable because the quality of goods supplied were not as per the promise made by petitioner company and that the C-Form was issued to help the petitioner in getting sales tax assessment done. Thereafter rejoinder, additional reply, additional rejoinder have been filed by parties. 7/ Learned counsel for petitioner submits that petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 10/12/2009 for sum of ₹ 2,03,621/-, dated 21/12/2009 for ₹ 2,03,696/- and dated 21/10/2010 for ₹ 2,03,696 by the respondent is not in dispute. These cheques have been dishonoured. 12/ Delhi High court in the matter of IFCI Factors Ltd. Vs. Koutons Retail India Ltd. reported in 2013(2) ADR (NOC) 67 has held that mere issuance of post-dated cheque itself constitute acknowledgment of liability by the debtor company and dishonour of those cheques also demonstrate the inability of debtor company to pay the amount. 13/ The petitioner has also placed on record the balance confirmation letter dated 21st April 2010 wherein the respondent company had confirmed that sum of ₹ 6,14,955/- was due as on 31st March 2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal rejoinder. 19/ The record further reflects that appeal pending before the AAIFR has already been dismissed vide order dated 9/5/2016 therefore, there is no legal impediment in proceeding with this company petition. 20/ The respondent has also raised an objection that in the prayer clause and in the affidavit instead of company petition writ petition has been mentioned, but such a minor defect relating to typographical error will not defeat the company petition itself and will not furnish a ground for dismissing it. Hence counsel for petitioner is permitted to take appropriate steps to correct it. 21/ So far as the objection relating to not filing the company petition in the prescribed form is concerned, it is noticed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66 but in the present case it has already been found that proper authorized person had given the affidavit therefore, petitioner is not entitled to the benefit of those judgments. 24/ Counsel for petitioner placing reliance upon order of this court dated 16/1/2018 passed in Company Petition No. 4/16 and 5/16 has also submitted that company petition has been filed merely for recovery of money but having regard to the facts which are noted above it is clear that debt more than the statutory amount mentioned in Section 434 is due and respondent company is unable to pay the debt and there is nothing to indicate that debt is bonafidely disputed, hence the present case stands on different footing then the company petition no. 4/16 (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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