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2015 (4) TMI 728 - HC - Companies LawDefault in repayment of outstanding amount - Winding up petition - authenticity of the e-mails - Held that:- The contemporaneous correspondence annexed to the affidavit-in-opposition are in dispute. Such dispute could not be effectively dealt with by the company in their subsequent pleadings. The learned advocate while giving reply to the statutory notice of admission did not make a mention of the e-mails. Even if we accept the authenticity of the e-mails, it would not specifically raise any constructive defence that could resist successfully a winding up petition. Even if we give some credence to the same, we cannot lose sight of the unequivocal admission in the affidavit-in-opposition coupled with the Statement of Account referred to above. It is true, the company secured the claim that they did to have an effective hearing of the appeal. If we look to Section 434 of the said Act of 1996, we would find, the Company could resist the winding up petition offering security at the stage of giving reply to the statutory notice of demand, instead they denied the claim. They could also offer security on the first returnable date. They did not opt. After completion of the pleading, in course of hearing when they could not successfully resist the winding up petition, offering security would rather strengthen the presumption that they were neglecting to pay the debt. A company might be in a precarious condition to pay off its creditor’s dues, that would be a “failure”. A high mighty, if willfully neglects to pay an admitted debt, that would certainly come within the mischief of “neglected” within the meaning of Section 434 (1)(a). Hence, we do not give much importance on such issue. - Decided against the appellant.
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