9911796707
TMI Blog2018 (9) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the respondent company which were duly received and various commercial invoices were raised by petitioner No.1. Reliance is placed on communications issued by the respondent to petitioner No.1 from 8.1.2014 to 20.5.2014 admitting its liability. As there has been defaults on the part of the respondent on 9.3.2015 petitioner No.1 assigned the debt against the company to petitioner No.2. On 9.9.2015 a statutory notice under section 434 of the Companies Act, 1956 was sent. Respondents have disputed their liability in the reply dated 3.10.2015. 2. I have heard learned counsel for the parties. Learned counsel for the petitioner has taken me through the communications dated 8.1.2014, 12.8.2014 and 6.10.2014 to state that the respondent has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er this Agreement without the prior written consent of the other party." 5. As per the above clause the parties cannot assign, charge, sub-contract or otherwise deal with any right or obligation under the Agreement without the prior written consent of the other party. The clause relates to performance of terms and conditions of the contract. In the present case the facts are that on account of default in payment by the respondent the petitioner No.2 the insurance company with whom petitioner No.1 had taken out the insurance has reimbursed petitioner No.1. Now the present winding up petition has been filed by petitioner No.1 and 2. Firstly, the act of assigning the debt has taken places on account of the default of the respondent. The res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Adjudication of certain categories of proceedings are reserved by the legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public fora (courts and tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, under Section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. 36. The well-recognised examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risis with the help of SANY excavators & TORSA Crusher (New Distributorship) However, we would make the payment for outstanding amount as follows: 1) USD 243808 40 on or before 28.02.2014 2) USD 12640.90 on or before 31.3.2014 We would like to release the balance amount in four instalments as approved by you, hereby making our account regularise for forthcoming shipments. Sir I have more than 30 yrs. Plus of experience of construction industry and have worked in Ltd. company. Out of my experience the present situation is overwhelming & on positive track which will lead us to overcome from this situation in coming months. In future there will be no question of delay in payment as the breakers would be lie in your warehouse in New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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