Home Case Index All Cases Companies Law Companies Law + HC Companies Law - 2015 (6) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (6) TMI 574 - HC - Companies LawWinding up petition u/s 433 and 434 of the Companies Act, 1956 - Default in repayment of dues - Held that:- keeping in view the ratio of the decision of the Supreme Court in M/s. MADHUSUDHAN GORDHANDAS & CO. v. MADHY WOOLLEN INDUSTRIES PVT. LTD. [1971 (10) TMI 49 - SUPREME COURT OF INDIA ] it has to held that the defence of the respondent company appears bonafide but the exact amount of debt, which is disputed, cannot be ascertained on the basis of the evidence on record. However, it cannot be said that the defence of the respondent company is not a substantial defence. Since the object and purpose of the present winding up petition is not regarding quantification of debt due and payable, so for as is relevant for the purpose of the present petition, though the petitioner/creditor has prima facie established entitlement for the amount, as claimed in the company petition, it cannot be said that the defence of the respondent company is mere moonshine and is only raised for the purpose of avoiding its inability to pay the debt. Following principles related to bona fide disputes evolved from the Supreme Court decision in Tube Investments of India Ltd. - If there is dispute as regard the payment of sum towards principal however small, petition for winding up is not maintainable - Existing of dispute with regard to payment of interest can not be construed as existence of bona fide dispute - If ther is no bona fide dispute with regard to sum payable towards principal, it is open to the creditor to resort both the remedies of filing a civil suit as well as filing a petition for winding up . In the present case also it is not shown that the respondent company is unable to meet its liability as and when they accrued. It is also accepted in the present case that the respondent company is a profit making company and not a single instance of any creditor's legal action before any forum was pointed out by P.W.1. In view of that, therefore, since, prima facie, dispute exists about the debt, as claimed by the petitioner company, I do not find any justification for ordering winding up of the respondent company. There are neither pleadings nor any evidence to support the petitioner's claim that the respondent company is liable to be wound up on the ground that such order would be just and equitable. On the contrary, the facts, on record, clearly show that a profit making company for the last more than three years is not required to be wound up on any ground. - Petition for winding up dismissed.
|