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2009 (3) TMI 562 - HIGH COURT OF DELHIWinding up - Circumstances in which a company may be wound up - Held that:- The tender of cheque of ₹ 18,87,800 after deduction of tax at source on 28-8-2006, by the respondent cannot be considered to be payment tendered by the respondent against the supply of any specific goods. From the proforma invoice dated 22-7-2006, it is evident that 50 per cent of the amount was to be paid as advance and the remaining 50 per cent within 30 days of the supply being made. Strictly speaking, this part of the agreement was not adhered to by the parties. It is also seen that the petitioner itself did not consider the failure of the respondent to make payment of 50 per cent advance as a breaking point in the relationship between the parties. The tender of the cheque for ₹ 18,87,800 therefore, in my view, cannot be considered to be an admission of liability to that extent by the respondent towards the petitioner. The present petition should be dismissed on the ground that it raises disputed questions of fact; that the respondent has raised a plausible and bona fide defence, and; that the petitioner has already instituted a civil suit for recovery of the disputed debt and that the machinery for winding up should not be allowed to be used merely as a means for realising a disputed debt from the company from the decisions relied upon by the respondent.
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