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2018 (10) TMI 978 - HC - Companies LawWinding up petition - debt due and payable - Held that:- As noted earlier not a single document has been produced on record by the appellant to demonstrate that the appellant's dealer, either on 15th July, 2013 or even within 2-3 days thereafter actually corrected/modified or for that matter attempted to correct/modify the alleged error in punching in in the respondent's UCC in the record of the NSEL. This is despite the fact that the appellant, both in response to the statutory notice as well as in its reply opposing the company petition, has time and again asserted that such modification/correction was in fact carried out. Again, there is also no material produced on record by the appellant to even prima-facie establish that the factum of alleged error/mistake as well as its immediate correction/modification was intimated to the respondent either on 15th July, 2013 or within some reasonable period thereafter. In such circumstances, we cannot really fault the view taken by the learned Company Judge in holding that the defense raised by the appellant was neither bona-fide nor substantial. Mr. Sancheti, however chose to rely upon NSEL circular dated 8th July, 2011 in support of the primary defense. He submitted that this circular makes it clear that the NSEL permits client code modification and therefore, on the basis of such circular, it must be held that errors in punching in the client's code are quite routine and correction/modification is clearly permissible. Mr. Sancheti submits that on the basis of this circular the primary defense raised by the appellant deserves to be accepted. If modification had indeed been effected by the appellant, as repeatedly asserted, then surely the same would have been reflected in the records of NSEL, which was fully operational between 15th July, 2013 and 30th July, 2013. Admittedly, no such modification/correction is reflected in the records of the NSEL. As noted earlier the NSEL by its communication dated 29th September, 2014 has very clearly stated the subject trades stand recorded in the name of Sujana and not in the name of the NSEL. Therefore, it is not possible to accept Mr. Sancheti's contention that the NSEL circular dated 8th July, 2011 constitutes any prima-facie proof in relation to the primary defense urged by and on behalf of the appellant. In the facts of the present case it is difficult to accept that the defense raised by the appellant is either bona-fide or substantial. In any case, the appellant has failed to adduce any prima-facie proof in support of the primary fact on which the defense is based. Mr. Dhond, had in fact pointed out that this may not be some isolated instance, since, even criminal prosecution is launched against the appellant/its officers for routinely increasing trade volumes by deliberately punching incorrect client codes. In a jurisdiction of the present nature, obviously, we cannot go into such issues.
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