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2013 (2) TMI 315 - DELHI HIGH COURTWinding up petition - Respondent were unable to pay debts owing to the Petitioner - agreement entered between the parties for the sale of design - as stated by petitioner that by an email dated 8th October 2010, the Respondent admitted and confirmed its liability towards US$ 350,000 being the balance consideration after deducting tax at source - Held that:- Respondents in its reply dated 19th June 2012 to the notice dated 26th May 2012 has denied any liability whatsoever. It is, inter alia, stated in the reply that he is not liable to pay any sum of US$ 350,000 or any other amount under the Agreement dated 18.05.2008 as alleged. In fact the said sum has not even become due or payable. Even in spite of this, if petitioner initiates any winding up proceedings or any civil suit or any other proceedings, as threatened in notice, he will take all required steps to protect themselves against petitioner illegal actions besides making him responsible and liable for all consequences arising therefrom. The Petitioner has been asked to withdraw the notice and directed to extend the technical support to the Respondent pursuant to the agreement for the sale of design for the process. As decided in Amalgamated Commercial Traders (P) Ltd. v. A.C.K. Krishnaswami (1965 (1) TMI 16 - IN THE SUPREME COURT OF INDIA) that a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the Court. Aslo see M/s. Madhusudan Gordhandas v. Madhu Woollen Industries Pvt. Ltd. (1971 (10) TMI 49 - SUPREME COURT OF INDIA) & In Pradeshiya Industrial & Investment Corporation of U.P. v. North India Petrochemicals Ltd. (1994 (2) TMI 267 - SUPREME COURT OF INDIA). Thus in the present case, the Court is not persuaded to hold that the requirements of Sections 433 and 434 read with Section 439 are satisfied. The response of the Respondent to the legal notice issued by the Petitioner raises disputed questions of fact, which will require examination of evidence in other appropriate proceedings. It is not possible to conclude that the defence of the Respondent is a mere “moonshine” and not bonafide - winding up petition dismissed.
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