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TMI Blog2024 (6) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... te as to the existence of a payable debt. It is trite law that the Company Court cannot enter into an adjudication of disputed facts, wherein a finding on facts is to be recorded as regards whether the liability stated is actually due and payable, and such a case would be the subject matter of a commercial suit. Withdrawal of petition - it has been prayed by learned Counsel for the Petitioner that they may be permitted to withdraw the present petition with liberty to institute proceedings before the appropriate commercial court for adjudication of their claims in accordance with law - HELD THAT:- Reference may be invited to the decision of a Co-ordinate Bench of this Court in M/S. SHANKAR STEEL SUPPLIER VERSUS M/S. RAMPUR ENGINEERING COMPAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten purchase orders dated 11.04.2012, and such goods were duly supplied by the petitioner to the respondent company at the required site on 24.04.2012. Thereafter, the petitioner raised certain bills/invoices dated 20.04.2012 and 26.04.2012 against said purchase orders for an amount of Rs. 17,67,099/- and it was agreed that in case of failure to make such payment within 25-30 days of the supply of goods, the respondent company would be liable to pay interest @ 18% per annum. Despite repeated reminders, the respondent company failed to discharge its liability, and consequently, the petitioner issued a demand letter to the respondent company dated 14.01.2014. Since the respondent company did not reply to the said demand letter, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any that the debt sated to be payable and claimed by the petitioner is disputed, and even if such debt is admitted, the respondent has a genuine counter claim to the amount claimed by the petitioner. In view of the same, it is submitted on behalf of the respondent company that instituting a winding up proceeding is not the appropriate means for enforcing a debt and recovery of the same, and that the petitioner has a right to proceed before the other appropriate for a. 4. In light of the submissions advanced by the learned Counsels for the parties, as also on a careful perusal of the record, this Court is of the opinion that the contentions raised by the parties constitute triable issues, insofar that there is a dispute as to the existence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation. For the purposes of this section, (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peculative, 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 fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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