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TMI Blog2014 (11) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... es in equitable jurisdiction. It is well settled in law that a winding up petition is not legitimate means of seeking to enforce for payment of dues which is bonafide disputed by the respondent. It is evident that the amount due in the instant case has not crystalized and there is a bonafide dispute with regard to liability of the respondent to pay the amount in question to the petitioner. The petitioner has also failed to prove that the condition of insolvency in the commercial sense in respect of respondent exists. For the reasons aforementioned, no case for winding up of the respondent is made out. - Company Petition No.15/1999 - - - Dated:- 12-11-2014 - Mr. Justice Alok Aradhe, J. For the Appellant : Mr. Girish Shrivastava, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isen for offences punishable under Sections 120B, 420, 467 and 506 of the Indian Penal Code for making forged entries in the ledger against the petitioner. Thereafter the petitioner filed this petition on 25.10.1999 on the ground that the respondent should be wound up as it is unable to pay the debt which is due and payable by it. 4. Learned counsel for the petitioner submitted that the respondent by communication dated 11.12.1997 admitted its' liability to pay a sum of ₹ 32,09,813 to the petitioner. It is further submitted that as on 31.1.1999 an amount of ₹ 27,12,437/- was due and payable by the respondent and the respondent did not pay the same despite notices dated 18.2.1999 and 22.6.1999. It is also submitted that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Vol. 70) 459], Kanchanga Chemicals Industries v. Mysore Clipboards Ltd . [1998 (Vol 91) 646, Madhusudan Gordhandas v. Madhu Woolen Industries Pvt. Ltd . AIR 1971 SC 2600, Narendra Glasses Works (P) Ltd. v. M.P. Beer Products (P) ltd, [1989 Company Cases (vol. 65) 396], IBA Health (India) Pvt. Ltd. v. Info Drive Systems SDN, (2010) 10 SCC 553, N.N. Construction Pvt. Ltd. v. Khatema Fibres Ltd . [2001 Company Cases (Vol. 104) 254], Multimetals Ltd. v. Suryatronics Pvt. Ltd . AIR 1997 Andhra Pradesh 13], Rainbow Enterprises v. India Brewery and Distillery Ltd . [1995 Company Cases (vol.82) 74] and Chandradhar Goswami and Others v. Gauhati Bank Ltd. , [1967 Company Cases (Vol. 37) SC 108]. 6. Before dealing with the rival submissions made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that to raise a presumption of a company's inability to pay its debts it is not enough merely to show that the company has omitted to pay the debt despite service of statutory notice, it must be further shown that the company omitted to pay without reasonable excuse and conditions of insolvency in the commercial sense exist. In the case of IBA Health (India) Private Limited Vs. Info-Drive Systems SDN. BHD. , (2010) 10 SCC 553, it has been held by the Supreme Court that where there is a bonafide dispute as to the liability to pay the amount of debt, it is the duty of the Court to ascertain the cause for refusal to pay the debt and invocation of Section 433(e) and (f) of the Act is impermissible. 8. In the backdrop of the aforesaid wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to liability to pay the amount in question which requires examination of the evidence and documents. 10. In the instant case, the petitioner has neither made any averment nor has placed any document on record to demonstrate that the respondent is commercially insolvent. On the other hand, from the documents on record, it is evident that the respondent is a profit making solvent company and is in a position to meet its debt as and when it arises. The petitioner has failed to show that the respondent has omitted to pay the debt without reasonable excuse and conditions of insolvency in the commercial sense exist. 11. The Company Court exercises in equitable jurisdiction. It is well settled in law that a winding up petition is not l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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