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2013 (8) TMI 429 - HC - Companies LawPetition for winding up - The appellant appointed the respondent as its dealer to deal with computer and other related products belonging to the appellant - There was outstanding as claimed by the appellant - Held that:- an application for winding up could only be resisted by raising a bona fide dispute. - To resist a winding up, the defence of the company must be a bona fide one and on a prima facie view sustainable. The e-mails exchanged between the parties would foreclose the scope of the company to dispute any part of the claim. - Subsequent plea on damage could not be said to be a bona fide one. Whether a dispute is bona fide or not, could be derived from the contemporaneous conduct of the parties. In one of the e-mails the company would suggest, they would make final payment on adjustment. However, such adjustment should certainly relate to a sum less than the claim of the petitioning creditor. In course of hearing we made repeated query as to what sum was in contemplation of the company to be adjusted against the dues of the petitioning creditor. We did not get any reply. The respondent company was directed to secure the claim of the appellant by offering cash security or any other co-lateral security to the satisfaction of the Registrar, Original Side -Such security must be furnished within a period of four weeks from date - In default, the winding up petition would stand admitted for the sum together with interest at the rate of 9% per annum on and from the date of receipt of statutory notice of demand until payment and the petition for winding up would stand revived and appellant would be entitled to approach the learned Company Judge for appropriate direction for advertisement as well as fixation of returnable date - Otherwise, the petition for winding up would remand permanently stayed. Claim being Time Barred - Merely because the debtor was a corporate entity the creditor cannot enforce hid debt as a matter of a right in a winding up proceeding - It can only ask for winding up of the debtor and he becomes successful if the defence taken by the company, according to the Court, prima facie not sustainable – the plea of time barred claim could not be accepted – The law of limitation is enacted to prevent any stale claim to be raised as and when a litigant would desire that would create a tremendous uncertainty to a right and liability preventing any controversy to reach finality- The appeal succeeds in part and is allowed.
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