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2013 (4) TMI 31 - HC - Companies LawWinding up petition – Inability to pay debt - The petitioner has alleged that the respondent Company has despite repeated reminders and even after statutory notice failed and neglected to discharge its financial liabilities and obligations and has not made payment and that the respondent's failure to make the payment establishes its inability to discharge its debts. The petitioner has preferred present petition and prayed for order of winding up against the respondent Company. Held that - Court before taking the decision made reliance on following judgement of Conart Engineers Ltd. v. Laffans Petrochemicals Ltd. [1998 (10) TMI 395 - HIGH COURT OF GUJARAT] where court considers it appropriate to allow an opportunity to the respondent company to deposit the amount in question and on the judgment of Supreme Court in IBA Health (I) (P.) Ltd. v. Info-Drive System Sdn. [2010 (9) TMI 229 - SUPREME COURT OF INDIA], where it was decided that what possible ground is there in which a company may wound up. One of the tests to determine whether the dispute is genuine, and real and is raised bona fide and whether the refusal to pay is for genuine reason and dispute or to hide inability to pay, is to direct the respondent to pay-deposit the amount. In view of the facts of this case and the findings of the Court and in light of the above quoted observations and on judgment of it appears appropriate and necessary to direct the respondent, to deposit the amount in question within 4 weeks from the date of present order. If the directions are complied with by the respondent, then further and appropriate order shall be passed by the Court after hearing the petitioner and the respondent. During the said time limit the petitioner shall also take appropriate steps to remove the defects of which reference is made hereinabove earlier. The petitioner shall, inter alia, place on record the resolution by the company which might have been passed resolving to institute winding up petition against the respondent and authorizing Mr. Uto Baader to take necessary steps for the said purpose including appointing a Constituted Attorney and to make proper affirmation of the petition and file affidavit in accordance with Rule 21 read with Form 3. So far as the respondent's allegation that petitioner has subsequently made corrections or additions in the affidavit which constitutes contempt, are concerned, it is clarified that the said aspect will be considered by the Court at the time when the petition is heard and adjudicated on merits.
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