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2013 (9) TMI 991 - HC - Companies LawWinding up application - Default in payment of the price of the coal supplied to the company - No reply to Statutory notice - Held that:- I am not unmindful of the proposition of law that if the Court finds that a sham defence is taken only for the purpose of avoiding the rigour of the provisions applicable to the winding up of the company, the Court should not consider the same to be a bona fide one. It is undisputed that non reply to a statutory notice raises a presumption but such presumption is certainly rebuttable. The specific case made out by the company is that the document which is the foundation of the claim of the petitioning creditor is not a genuine one and contains spurious and or manufactured seal and the signature. Had it been a case of bare allegation to that extent the Court would have brought the same within the zone of sham defence but in the instant case certain other documents bearing the seal and signature appended therein on its bare look suggests that the company uses a different seal and signature. There must be a clear and unambiguous acknowledgment and/or admission of the liability which, this Court finds to be absent. The company not only disputed the supple of the material but disputed the veracity and/or the genuinely of the documents itself. This, Court, therefore, does not find that mere non-response to a statutory notice would really stand against the company’s defence as held in the case of K.T.S. (Singapore) PLC. Ltd. [1993 (1) TMI 243 - HIGH COURT OF CALCUTTA]. In the above findings, this Court does not find that the petitioning creditor has been able to make out a case as unequivocal claim in the winding up petition warranting the invocation of the provisions applicable to the winding up petition under the Companies Act of 1956. This Court finds that such claim cannot be adjudicated in the winding up proceeding and, therefore, relegates the petitioning creditor to civil suits. - Winding up petition dismissed.
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