TMI Blog2011 (8) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioning creditor will not invoke the bank guarantee without the leave of the Civil Court. Such leave will be granted by the Civil Court if the Company is unable to prove its right - C.P. NO. 519 OF 2010 - - - Dated:- 4-8-2011 - I.P. MUKERJI, J. A.C. Kar, R. Dutta and P. Jewrajika for the Company. U. Bose and N. Sengupta for the Petitioner. JUDGMENT 1. This is a winding up application coming up for admission. The statutory notice was issued on 10-8-2010. This application was filed on 23-11-2010 on a claim of Rs. 1,01,48,543.37 without interest, against the Company. In the Affidavit-in-Reply of the petitioning creditor such claim was scaled down to Rs. 50,08,921. 2. This petitioning creditor is a Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of accounts to the petitioning creditor. It referred to the petitioning creditor's letter dated 15-6-2010. This letter dated 15-6-2010 has not been disclosed in this proceeding. But the learned Counsel for the petitioning creditor tells me that in this letter they had disputed the statement of accounts. The revised statement of accounts sent on 23-6-2010 said "therefore balance as on 23-6-2010 is Rs. 1,01,48,543.37." Now this statement of accounts is relied on by the petitioning creditor to argue that there was an unconditional acknowledgement on the part of the Company that they were liable to pay Rs. 1,01,48,543.37 to the petitioning creditor. 5. The learned Counsel for the Company argues that the balance confirmation only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the agreement of 14-9-2009 or any adjustment according to that agreement. 9. Secondly paragraph 6 of the Affidavit-in-Reply makes it explicit that Rs. 50,08,921 was held by the Company on account of the petitioning creditor. 10. After all the Company is the supplier and the petitioning creditor is the buyer. Normally, it seems that it is always open to the petitioning creditor to say that they would accept no more supply from the Company and claim return of Rs. 50,08,921, which the Company would be obliged to do. But the Company maintains that the relationship between the parties continues. That is why the Company made deductions from the deposit against subsequent sale. As a result of this the petitioning creditor restrict the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is to be adjusted against sale made by it to the petitioning creditor, which is practically no defence, the suit has to be filed by the Company to establish its claim for Rs. 50,08,921 within four weeks from date. If no bank guarantee is furnished the petitioning creditor will be at liberty to apply for admission of the winding up petition. If no suit is filed, the petitioning creditor will be at liberty to encash the bank guarantee, with the leave of this Court. If no bank guarantee is furnished and the Court is approached the petition would be deemed to have been admitted on the basis of this order and only consequential orders for publication of advertisement and hearing of the winding up application will be passed by this Court. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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