TMI Blog2012 (12) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... company would demonstrate its inability to pay its debt and would eminently qualify the company to be wound up. There is no defence that the company can show to resist payment of the sum of Rs.1.45 lakh that was due in terms of the relevant clause of the memorandum of understanding, particularly in the light of the electricity company's letter demanding payment of a particular sum in full and final satisfaction of its claim and the company's acceptance of the veracity of the relevant money receipt. As to the company's reference to failure of the petitioner to discharge its obligations on account of the provident fund dues of the employees, the relevant clause does not empower the company to withhold any payment on account of the petitioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition and the one dismissing the review application. The Appellate Court agreed with the views expressed in both the orders, but afforded the petitioning creditor an opportunity to present its best documents for a reconsideration of the claim. Hence the present hearing. 2. The petitioning creditor has used a supplementary affidavit disclosing certain additional documents. The veracity of the additional documents appended to the petitioner's supplementary affidavit has not been questioned by the company. 3. The claim of the petitioning creditor is on account of money due under an agreement. According to the petitioner, a piece of land belonging to the directors of the petitioner company was conveyed to the company under an agreement. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner sought to rely on some document, the Court did not permit any new document to be sprung on the company at the hearing. The petition was not admitted because the petitioner could not conclusively demonstrate - though it was required to do so in a matter of this kind and where the claim is assessed on affidavit evidence - that it was entitled to the payment that it claimed. The review petition was dismissed since it appeared that the relevant document was in the possession of the petitioner but it had been carelessly - not despite due diligence - not appended to the papers filed by the petitioner in Court. 6. Since the Appellate Court has condoned the petitioner's conduct and has now required the matter to be dealt with afresh o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own, the petitioner is not entitled to payment of the balance sum of Rs.1.45 lakh. The company has again, as on December 5, 2011, altogether denied the transaction pertaining to its sister concern and vehemently maintains that the cheque for Rs. 1.45 lakh issued by the sister concern was not in respect of the memorandum of understanding which is the subject-matter of the present proceedings. 9. The company also refers to another clause in the memorandum which requires the petitioner to cooperate with the company in the matter relating to the provident fund dues of the employees. The company says that though the petitioner was obliged to sign forms and other documents in such regard, the petitioner has not done so. The company refers to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al satisfaction of its claim and the company's acceptance of the veracity of the relevant money receipt. 11. As to the company's reference to the alleged failure of the petitioner to discharge its obligations on account of the provident fund dues of the employees, the relevant clause does not empower the company to withhold any payment on account of the petitioner's failure to cooperate with the company in such regard. The company can demonstrate no more than the vague paragraph in its letter of January 27, 2011 in support of its allegation that the petitioner is in default on such count. The company is left free to establish the petitioner's default and take appropriate action before the proper forum. 12. The company is liable to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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