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2015 (3) TMI 585 - HC - Companies LawApplication for Winding up - Grounds for winding up - Held that:- Adverting attention to the contention of Mr. Bose now, which has been referred to earlier, it cannot be gainsaid that His Lordship did not have the benefit of looking into the contents of the letter dated April 2, 2010, for, neither was the same disclosed in the company petition nor had the affidavit in- opposition of the company surfaced when His Lordship was in seisin of the company petition at the pre-advertisement stage. If at all the said letter did not reflect the actual state of affairs, nothing prevented the petitioning creditor from challenging its contents by sending an adequate response. The orders of admission and winding up had been obtained by the petitioning creditor keeping His Lordship in the dark about the existence of such a letter which, in the further opinion of this bench, clinches the issue for the company and against the petitioning creditor insofar as the merits of the company petition are concerned. The decisions cited by Ms. Bhutoria, learned advocate for the company reported in [2009 (11) TMI 508 - HIGH COURT OF BOMBAY] E-City Media P. Ltd. , [2001 (3) TMI 922 - HIGH COURT OF KARNATAKA] Greenhills Exports (P) Ltd. are authorities for the proposition that a case based on a claim for unascertained damages cannot be equated with debt and that a petition for winding up of a company is not maintainable where the amount claimed is not a debt but damages. In the circumstances, the proper course is to relegate the petitioning creditor to a suit. Having regard to disclosure of the letter dated April 2, 2010, it is held that the company has not created an illusion of a defence but a bona fide dispute requiring detailed investigation into the facts; a dispute, which cannot be adjudicated in a summary proceeding of the present nature.In the result, the company petition is permanently stayed.
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