Home Case Index All Cases Companies Law Companies Law + HC Companies Law - 2018 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (1) TMI 1181 - HC - Companies LawWinding up petition - Held that:- Though the solvency of the company is not a standalone defense in the winding up proceedings, it is still a relevant criterion to be considered along with other factors which are in favor of the company. It is not the case that the Respondent Company has lost substratum or has become commercially insolvent. The Respondent had alleged breach of the agreement on the part of the Petitioner and raised its own claim. The Respondent had sought for restoration of the supply of power and is ready to comply with the conditions and deposited necessary amount. The Petitioner has sought to segregate the dispute and is calling upon the Court not to look into any other aspect of the matter, but only to focus only on one aspect , that is for some period there was supply for which there is no payment. The request of the Respondent for reconciliation of accounts has gone unheeded. The request of the Respondent to restart the power has not been acceded to, in spite of receiving the amount of ₹ 1 crore on 18 December 2013 and subsequently ₹ 3.25 crore in this Court. The Company Court cannot be oblivious to all these factors which go into the exercise of discretion. The Apex Court in the case of IBA Health (India) Private Limited [2010 (9) TMI 229 - SUPREME COURT OF INDIA] has held that the primary test that to be applied by the Company Court is see that the Respondent Company has "no good reason" to withhold the debt. It appears to me that the Petitioner is taking advantage of dominant position to engage in an arm-twisting tactic to try to recover a disputed amount. It cannot be said that the Respondent Company has no legitimate claim against the Petitioner. If this petition is admitted, it will have devastating effect on the Respondent Company, and will trigger various consequences and push the Respondent Company towards bankruptcy, which as of today is far from it. Considering the totality of the circumstances, Iit is of opinion that no case is made out for admission of the Company Petition.
|