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2016 (1) TMI 87 - HC - Companies LawClaim for set-off or adjustment - adjudicating the winding up petition - Held that:- Though the claim for set-off or adjustment is made by the respondent towards the alleged damages against the amount payable by it, for the limited purpose of adjudicating the winding up petition, this Court cannot treat such a claim for set-off or adjustment as lacking bona fides. Whether the respondent is really entitled to such setoff or adjustment needs to be adjudicated by the competent Court of law. For the present purpose, it will suffice, if this Court is satisfied that the set-off or adjustment claimed by the respondent is not an afterthought and that it has been consistent in its stand in this regard much before the filing of the winding up petition. On these facts of the case, this Court is of the opinion that as there is a serious dispute regarding the debt claimed by the petitioner, the remedy under Section- 433(e) read with Sections-434(1) (a) and 439 of the Act is not an appropriate one and no order for winding up of the respondent for non-payment of the admitted debt can be passed. The Company Petition is, accordingly, dismissed, however leaving the petitioner free to avail common law remedies for recovery of the amount claimed by it from the respondent.
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