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2007 (7) TMI 414 - HC - Companies LawWinding up – company resists the creditor’s petition for having it wound up on the twin grounds of lack of bona fides on the petitioner’s part and the claim being barred by the laws of limitation - Held that:- Clause (a ) of the Explanation to section 18 makes it clear that the refusal to pay would not affect the claim. In this case, the company accepts that it received payment but merely asserts that the money stood forfeited. There is acknowledgment of receipt of payment and the denial of liability on some ground. The denial is the justification for non-payment and mere denial, in the face of Explanation ( a) to the section, will not take much sheen off a document that can otherwise be read as an acknowledgment of liability. In the present case, the company acknowledged receiving the payment but claimed, without any reason in support thereof, that the money stood forfeited in the company’s hands. No attempt has been made to justify such forfeiture or to rely on any notice that is ordinarily required to be issued prior to forfeiture of any form. The company has not relied on any automatic forfeiture by law. It may as well have suggested that it chose not to pay because the sun shone outside. The company’s ground that the petitioner lacks of bona fides is without basis. It is the petitioner which gave the money to the company. Such fact remain undisputed. Who is in control of the petitioner or who is in control of the company is irrelevant once the petitioner is established as the creditor and the company the debtor.The company’s defence is completely without basis.
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