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2012 (6) TMI 643 - HC - Companies LawPetition for Winding Up – outstanding repair, erection and commissioning charges of Gantry cranes – petitioner raised 3 invoices – respondent contested that they entrustment of work of repair and erection to a third party as the petitioner did not complete the work successfully and to the satisfaction - Held that:- Looking at the dates and events it emerges that the respondent has not brought on record any material to demonstrate that during the aforesaid period i.e. starting from 26.02.2008 when the first invoice was issued until 23.04.2010 when the last of the aforesaid communications was forwarded by the petitioner to it 30.08.2009 any grievance with regard to the petitioner's performance of contract work about any alleged delay in executing the work or unsatisfactory performance of work - though in the interregnum the respondent company issued work order in favour of the said agency on 20th October, 2009, the respondent company does not appear to have given any notice or any intimation to the petitioner about the said development as before assigning work to any other agency during operation of the contract, the principal/employer would intimate the contractor that because of its default or negligence or delay or such other reason it is compelled to award contract to other agency- Respondent’s reply to the statutory notice has not mentioned the details about the extent of work executed by the petitioner and the extent of the work left out/left incomplete - the grounds of defense raised by the respondent are "some ingenious mask invented to deprive a creditor (in present case the petitioner) of its bonafide claim" – the respondent has come out with an afterthought dispute evident from the fact that the respondent has availed CENVAT & VAT credit - arbitration clause in the LOI also would not act as a restriction or obstacle or prohibition in maintaining a winding up petition - direction to Respondent to deposit the invoice amount covered in 3 invoices raised by petitioner within 4 weeks time - in favour of petitioner.
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