9911796707
TMI Blog2008 (5) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Companies Act, 1956. 2. It is to be noted that such order was passed after the appearance before the Hon'ble Court and after the advertisement was published in terms of an earlier order dated 7-7-2005 admitting the winding up petition filed by the petitioning creditor. The Hon'ble Court at that point of time came to the conclusion that the Company was unable to pay its debts and the claim of the petitioning creditor was indisputable. The Hon'ble Court was also pleased to grant liberty to the Company to pay the said sum or the sum equivalent in Indian currency to the petitioning creditor in 48 equal monthly instalments commencing from 1-8-2005. An appeal was preferred from the said order dated 7-7-2005 which was dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the MRI equipment. Some cheques were issued by the Company which were dishonoured on presentation. The plea of the Company was that the Company was facing financial crunch. 8. It further appears from the facts and the correspondences exchanged between the parties that the company repeatedly assured Siemens that payment would be made in accordance with the Schedule revised from time to time. 9. We have also considered the letters dated 3-12-2001; 12-6-2002; 7-8-2002; 11-10-2002 and 24-10-2002; 5-9-2003 and 9-9-2003 and after summarising the facts stated in the said letters it appears to us that the claim of the petitioning creditor was undisputed and the Company repeatedly asked for time to pay such dues. The said fact would be evident fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cured creditor can apply for winding up of a petition and hence he drew our attention to sections 439(1)(b) and 439(2) of the Companies Act. 14. Mr. Mukherjee further submitted that the petitioning creditor has specifically stated in paragraph 64 of the winding up petition that the petitioner has reason to believe and apprehend that the value of the system is inadequate to meet the petitioning creditor's present dues. He also drew our attention to the order passed by the Hon'ble Court on 7-7-2005 admitting the winding up petition. It further appears from the said order that the Hon'ble Company Judge was convinced that the company is unable to pay its dues at least prima facie. He was also convinced that there is no bona fide dispute raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is a well-known proposition of law that winding up petition is an equitable mode of execution of just and undisputed debts. Therefore, according to him, the Court has power to pass such order. 20. He further submitted that the Company had cited 3 cases namely, (a) Mediqup Systems (P.) Ltd.'s case (supra) on the plea of counter-claim being a defence to a winding up petition. The proposition is not disputed but the so-called plea of counter claim has not been raised in the pleadings nor in the Memorandum of Appeal. It has been casually stated in course of arguing the appeal that the company has recently filed a suit (obviously after the winding up order was passed) making a claim against the petitioning creditor. It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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