9911796707
TMI Blog2019 (7) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2013. It sought the winding up of the Respondent, Birla Cotsyn (India) Ltd ("Birla Cotsyn") on the basis that there was, firstly, an ascertained and liquidated debt demonstrably due, owing and payable by the Respondent to the Appellant; secondly, that Birla Cotsyn had failed and neglected to pay the amount; and thirdly, that on account of its failure to reply to the statutory notice issued by Wazir Financial, Birla Cotsyn must be deemed to be unable to pay its debts. Having heard both sides, the learned Single Judge passed the order under challenge on 22nd October 2018, a copy of which is annexed from page 17 of the Appeal paper-book. 3. We have perused the Petition and the record of the Appeal, Appeal memo and the impugned order. 4. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge. It is noted in paragraphs 5 to 7 of the impugned order. The learned Single Judge also noted that in its Affidavit in Rejoinder, Wazir Financial stated that while it had invoked the pledge, it had not actually sold the shares. 7. Before us, Mr. Sawant argues that there is an error apparent in the sense that the learned Single Judge allegedly mistook the number of shares for the amounts of shares or vice versa. This will make no difference. The question is not of that kind of detail but whether it can fairly be said there is an undisputed (or indisputable) liquidated and ascertained debt due and payable to the petitioning creditor. 8. What the learned Single Judge, on a careful consideration of the rival contentions, held finally was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was possible either. There is no manner of doubt that there is indeed an invocation of a pledge. Whether or not there is a realization pursuant to that pledge invocation is entirely immaterial. The Petitioner cannot possibly attempt to realize security, and then claim the whole of the amount and not just the shortfall is the debt due. If there was indeed a shortfall, then it will have to be examined whether Wazir Financial ever called upon Birla Cotsyn to furnish additional security. All these are disputed questions of fact arising from a bona fide defence. Balancing the rival contentions, we cannot conclude that the Petitioner has shown unequivocally or unambiguously that there is an ascertained liquidated debt due to it from the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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