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2014 (4) TMI 1180 - HC - Indian LawsWinding up petition - respondent company has failed and neglected to pay a sum of ₹ 2,20,320/- along with interest, due and payable to the petitioner and is thus, unable to pay its debts - Held that:- This is a case where the respondent has attempted to create a dispute only to avoid making payment to the petitioner. Shorn of the illusion that is sought to be created by the respondent by the abovementioned disputed letters, the indisputable facts are (a) that the petitioner placed an order for the machine, (b) the petitioner was obliged to pay 10% in advance and the balance 90% on dispatch of the machine, (c) that the respondent received the machine but has failed to pay the consideration for the same. The contention that since the machine had not been installed by the petitioner, the respondent is not liable to pay for the same, also cannot be accepted in view of the fact that the respondent was obliged to pay the consideration of the machine on dispatch and the question of installing the same would only arise after the payment had been effected. In the instant case, the respondent has failed to make the payment as the cheque had not been honoured on presentation. The obligation of the respondent was to pay the entire consideration and on non-realization of the cheque the respondent was obliged to replace the same or remit the consideration through other means. However, it is apparent from the facts of the case that the respondent has deliberately avoided making payment to the petitioner. And, in absence of receiving the entire consideration, the petitioner was not liable to install the machine in question. The disputes raised by the respondent are a mere ruse to avoid paying the amount due to the petitioner. In this view, the respondent is deemed to be unable to pay its debts on account of its failure to discharge the debt owed to the petitioner. In view of the above, the present petition is admitted. The petitioner is directed to publish the citation in "Statesman" (English) and "Jansatta" (Hindi). The citation be also published in Delhi Gazette for hearing to be held on 17.07.2014.The Official Liquidator is appointed as a Provisional Liquidator to take charge of the assets and books of accounts of the respondent company.
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