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2014 (2) TMI 878 - HC - Companies LawWinding up of company - Whether the defence of the Company is prima-facie bona fide, substantial and cannot be said to be specious or spurious, nor intended to deceive genuine creditor, a winding up petition ought not to be entertained - Held that:- petitioner cannot be said to have established the Company’s liability to it in the amount claimed. The suppressions in the petition are many, and they are critical. It is only in the rejoinder that some sort of an explanation is offered. To my mind, there are two determinative factors. The first is the petitioner’s acceptance of the Company’s averment that Jayesh Desai or an entity he substantially controls was MSTC’s consignee and that this resulted in a circular routing of money and goods. The second aspect is the Company’s case regarding the transmission of funds to the Pen Bank. In the further affidavit dated 29th July 2013, the Company has set in copious details how these transactions were effected. Again, there is no cogent answer from the petitioner. Then there is a matter of the petitioner’s extraordinary delay in making its claim, despite its contention that its invoices were payable no later than within 120 days. The failure of this petition is inevitable. But it must be accompanied by consequences that are both real and palpable. Received wisdom tells us that Court should be gentle in the award of costs. Indeed they should, when a party earns that clemency. It is not in every case that costs are awarded, and fewer still where the costs imposed are significant. But where the amounts are as high as they are here, where mendacity is writ large in the petition itself, there is no room for leniency - Decided against Petitioner with costs.
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