TMI Blog2006 (8) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... annum from August 2002 be made to the petitioner. 2. Upon failure to honour the consultation fee the petitioner gave a statutory notice to the respondent company ( Company ) under section 434 of the Companies Act, 1956 (for short the Act ), demanding due payment towards principal amount with interest but the respondent company failed to make payment within statutory period, as a result of which the petitioner was led to file instant company petition for winding up under section 439 read with section 433( e ) of the Act. 3. It is averred in the petition that the company approached the petitioner for providing technical consultation in order to set up the Insulation Board project at Kaladera, Rajasthan and an agreement was executed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd inferior commercial production of the press Board the Kirlosker PE Ltd. withheld the payment of Rs. 7,35,393 and issued debit note on 29-1-2004. The company further stated that the equipments recommended by the petitioner were not as a requirement of the plant and the company had to replace them incurring extra payment of Rs 3.5 lakhs. The petitioner being not entitled to any payment from the company cannot plead that the company failed and neglected to pay the amount or is deemed to be unable to pay its debts. In support of the contentions various documents have been filed by the company. 5. The petitioner firm filed rejoinder to the reply reiterating the facts stated in winding up petition. 6. I have given my thoughtful conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that no price had been agreed upon and the sum demanded by the creditor was unreasonable. See London and Paris Banking Corporation [1874] LR 19 Eq. 444. Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been properly was not allowed. [ See Re. Brighton Club and Horfold Hotel Co. Ltd. [1865] 35 Beav 204]. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt, see Re. A Company 94 SJ 369. Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
