TMI Blog2007 (1) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent. By the impugned order, the learned Company Judge has held that the winding up petition preferred by the respondent is maintainable and as an interim measure, the appellant company has been directed to deposit the principal sum of Rs. 43,75,630 in court within four weeks from the date of the impugned order. Aggrieved by the said order, appellant company has preferred the present appeal. 2. The brief facts of the case, as culled out from the record are that the respondent issued a statutory notice dated 7-1-2000 under section 434(1)( a ) of the Companies Act, 1956 (for short the Act ) to the appellant company calling upon it to pay an amount of Rs. 60 lakhs to the respondent. Prior to issuance of the said statutory not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is maintainable, it was argued before the learned Company Judge that the winding up petition should be dismissed as not being maintainable. The said submissions were, however, rejected by the Company Court. After going through the records and considering the submissions of both the parties, it was held that the dispute in respect of the debt sought to be raised by the appellant company cannot be termed as a bona fide dispute and that no correspondence or any document of any nature was brought on record or even averred to exist by the learned counsel for the appellant company in respect of such defective goods. Further, the learned Company Judge referred to the acknowledgement of debt by the appellant company contained in its letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a running account and that the said letter was only for reconciliation of accounts; that as there was a running account maintained between the parties, the parties were selling and making the payment and there is no confirmation by the appellant company of the balance amount at any time and finally that certain disputed questions of facts are involved in the matter and that the same can only be resolved through a civil suit and not through the present proceedings initiated by the respondent. 5. In support of these submissions, learned counsel for the appellant company has placed reliance on a judgment of this court in the case of Rishi Pal Gupta v. S.J. Knitting Finishing Mills (P.) Ltd. [1998] 93 Comp. Cas. 849 (Delhi) has subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d judgment of the Company Court is misplaced and in fact the present case is squarely covered by the judgment rendered by the Division Bench in the same matter, which was taken in appeal. 7. It is also submitted by the learned counsel for the respondent that the winding up petition was not based on a mere running account, but was substantiated by an admission on the part of the appellant company contained in its letter dated 11-1-1999 which letter has not been denied by the appellant company in its reply dated 29-1-2000 to the statutory notice dated 7-1-2000 issued by the respondent under section 434(1)( a ) of the Act and that the learned Company Judge rightly concluded that the winding up petition was founded on the above acknowledgem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 433 of the Companies Act. The view taken in the order in appeal that entries in the books are no evidence is not correct as there is material to fix liability. The material is contained in the admission made by the respondent in its reply, dated 22-11-1991 referred to in our order dated 27-9-1995 extracted above." 10. With the above observations, the appeal was allowed and the matter was remitted back to the learned company Judge for disposal in accordance with law. Accordingly, the Company Court took up the matter in the absence of the counsel for the respondent and on consideration of the facts and circumstances of the case, expressed satisfaction that a prima facie case had been made out by the petitioner therein that the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id judgment and noting that in the aforesaid case also there was not only reliance placed on the balance sheet but an acknowledgement of debt contained in the reply dated 22-11-1991 issued by the respondent therein, the learned Company Judge dismissed the applications of the respondent therein for recalling the order of its winding up. 11. In our opinion, the aforesaid judgment dated 29-11-1995 of the Division Bench of this court, setting aside the order dated 2-11-1993 and remanding the matter back to the Company Court, followed by the judgment of learned Company Judge dated 18-5-1998 in the same case, holding that the winding up petition is maintainable in view of the fact that the same was based on not only the balance sheet reflecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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