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2016 (8) TMI 1480 - HC - Companies LawWinding up of appellant company - Extension of Time (EOT) under Clause 44 of the General Conditions of Contract (GCC) - admittance of outstanding payments - existence of debt and dispute - HELD THAT:- The deliberations of the Board of Directors in its various meetings were only proposals which definitely were required to be looked into and final decision thereupon came to be taken only on 30.07.2015 when the minutes of 205th meeting stood superseded. Therefore, no benefit whatsoever can be claimed by the respondent on the basis of 205th meeting, particularly, when the final settlement thereupon was arrived at much later. As regards the contention of the respondent that the appellant had in the aforesaid meeting admitted and acknowledged the debt due in favour of the respondent, we find the submission to be far-fetched. An acknowledgement of liability has to be clear, unambiguous, unequivocal and unconditional which is not the fact situation obtaining in the instant case. A company may deliberate on a number of issues and unless and until some decision is taken and thereafter conveyed to the opposite party (respondent herein), these would only remain and can only be considered as proposals or at best the internal matters of the company and can by no legitimate or even legal standards be termed to be "admissions" or "acknowledgments" of debt. It is more than settled that the presumptions are always rebuttable and, therefore, the question is whether the appellant company has been able to rebut the presumption. It would be evident from a perusal of the aforesaid letter that nowhere is it the case of the respondent that the appellant had acknowledged or even admitted any specific amount due, rather, the respondent itself asked the appellant to treat the letter as a notice of arbitration under Clause 67 of the GCC and initiate the process of constituting Arbitral Tribunal in accordance with the provisions of the contract. Not only this, the request was thereafter again reiterated by the respondent in its letter dated 31.08.2012. In such circumstances, it is not only difficult but impossible to hold that the appellant had infact admitted or acknowledged the debt much less a specific debt. Thus, the so-called debts were never infact acknowledged or admitted, but were rather disputed by the appellant and that is why the respondent itself chose to invoke the modified Clause 67 of the GCC to have the matter referred to the Arbitral Tribunal - It is beyond dispute that the machinery for winding up will not be allowed to be utilized merely as a means to realizing its debt due from a company. In case, there exists a bona fide dispute and the dues are not admitted, the winding up petition is required to be dismissed. The debt is not admitted debt and the dispute raised by the appellant is not only a substantial but a bona fide one and it cannot be held that the appellant has neglected to pay. Therefore, the case would not fall under Sections 433(e), 433(1)(a) and 439 of the Act - no case for winding up of the appellant company is made out - Appeal allowed.
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