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TMI Blog2023 (2) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... would be maintainable on account of inability to pay the debt. However, the facts of the case must clearly establish that there is no plausible defence available to the debtor company. The defence so raised has been solely for the purposes of avoiding repayment of admitted debt and in most cases, to camouflage the inability to do so. Appeal allowed. - CO.APP. 3/2018 & CM No.6777/2018 - - - Dated:- 14-2-2023 - HON'BLE MR. JUSTICE VIBHU BAKHRU AND HON'BLE MR. JUSTICE AMIT MAHAJAN For the Appellant : Mr. Naveen Chawla, Ms. Surabhi Rana Ms. Monika Madaan, Advs. For the Respondent : Ms. Suruchi Suri, Adv. Ms. Megha Bharara, Adv. for Ms. Ruchi Sindhwani, Adv. for OL. VIBHU BAKHRU, J. 1. The appellant has filed the present appeal impugning an order dated 24.01.2018 (hereafter the impugned order ) passed by the learned Company Court in Company Petition No.637/2016. 2. The respondent (petitioner in the company petition) had filed the said petition under Section 433(e) and 433(f) of the Companies Act, 1956 (hereafter the Companies Act ) seeking winding up of the appellant company (respondent in the company petition). 3. It was the respondent s c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the orders passed by this Court. He contends that the same clearly indicates that the respondent s allegation that the appellant is unable to pay the debt is erroneous. 8. At this stage, it would be briefly necessary to refer to the documents referred to by the learned Single Judge in the impugned order. It is observed in the impugned order that the Agreement between the parties is embodied in a Communication dated 11.07.2013. The said Communication is set out below: KANAKIA SPACES 11th July 2013 To, PCI Middle East Fze. E-LOB, Office No. E-59 G 22 P.O. Box 419336 Hamriyah Free Zone Sjh Dubai, UAE Dear Sir, With reference to your quotation No. 005/13-14/OA dated 1st July 2013, we Centaur Mercantile Pvt. Ltd. accept your quotation as per the below mentioned terms and conditions. A detailed purchase order for the same will be sent by 15th July, 2013. NAME OF THE PRODUCT: Diamond DA42-VI Twin Engine Aircraft Quantity 1 Nos. Port of Delivery- Mumbai, India PRICE Type Price Aircraft 513,659 Fer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the insured ferry by a highly experienced pilot for flying the aircraft from Austria to Juhu airport have been provided and the payment for the same be made at least 72 hours before the start of the ferry flight. The said letter also indicates that the payment was required to be made to PCI Middle East FZE. 13. In addition to the above communications, the learned Single Judge had also referred to an email dated 07.12.2015 sent by one of the officials of the manufacturer. The said email reads as under: Dear Mr. Kanakia, first of all we would like to thank you very much for having you as our valued customer and member of the Diamond family. We are getting back to you regarding your aircraft serial number 42.N163. Thank you very much for all your documents on the payment to PCI and other information on the permissions status. We are glad that things are moving regarding the permissions on your side. Regarding the aircraft purchase agreement that you have with PCI we would like to inform you about the following. Last week we have been sitting together with PCI (In Austria) in order to agree on the best way to solve the current situation. As agreed with Mr. Meht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted debt after receipt of the notice under the said Section, it would be deemed to be unable to pay the debt. We are unable to accept that in the given facts, the appellant has failed to repay an admitted debt. 19. Admittedly, only a sum of ₹30,00,000/- (Rupees Thirty Lacs Only) was received by the appellant and the respondent had paid the remaining amount as claimed by it to PCI Middle East FZE. The learned Company Court had also noted that PCI Middle East FZE was a subsidiary of the appellant. Although, PCI Middle East FZE may be a subsidiary of the appellant, it is a separate entity. 20. The amount claimed by the respondent was clearly not an admitted debt. In the circumstances, the petition under Section 433(e) of the Companies Act, would not be maintainable. 21. The learned Company Court had briefly examined the controversy between the parties and had observed that the defence raised by the appellant is a sham defence. Undeniably, in cases where the defence against the claim of debt is found to be moonshine or a sham, the petition for winding up would be maintainable on account of inability to pay the debt. However, the facts of the case must clearly establ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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