TMI Blog2014 (4) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... h would show that the same is bereft of essential terms such as the quantity of jewellery that was agreed to be exported and whether the jewellery has to be manufactured from out of the gold supplied by the respondent or from out of the petitioner's own gold. This Court is at a loss to know as to the reason for such a cryptic MOU between the parties while dealing with a very valuable subject matter of the contract, namely; manufacturing and exporting of gold ornaments. Under Section 433 read with Section 434 of the Act, a company cannot be ordered to be wound up, unless either the debt is admitted or the dispute as to the debt raised by the respondent is not bona fide. In the absence of a clear understanding between the parties stipulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h authorized capital of Rs.25,00,00,000/- divided into 2,50,00,000 equity shares of Rs.10/- each and its issued, subscribed and paid up capital is Rs.9,65,00,000/- divided into 96,50,000 equity shares of Rs.10/- each. That the respondent is mainly engaged in the business of manufacture and sale of gold jewellery, that it has approached the petitioner and represented that it had a confirmed export order for manufacture and supply of jewellery to M/s. Samrah Gold Factory, L.L.C., P.O. Sharjah, UAE, and that based on the said representation of the respondent, they have entered into a Memorandum of Understanding (for short 'MOU') on 25.08.2008. The petitioner further pleaded that under the said MOU, it was agreed that the respondent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 26.09.2008 and it is liable to pay interest at 24% per annum from 26.09.2008 till the date of actual payment. The petitioner further pleaded that in partial discharge of its liability, the respondent has issued two cheques, one for Rs.1,00,00,000/-and another for Rs.10,00,00,000/-, that when the same were presented to its bankers, they were returned as dishonoured and that it has initiated proceedings under Section 138 of the Negotiable Instruments Act against the respondent for dishonour of the cheques. That as the respondent failed to honour its commitment relating to payment of due amounts, the petitioner has sent a statutory notice on 18.02.2011 under Section 434(1)(a) of the Act, calling upon the respondent to make payment in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the petitioner towards the alleged liability and that they were issued in a different context, namely; that the respondent negotiated for buying the petitioner firm subject to the condition that it shall be converted into a private limited company by duly incorporating the same under the Act, that towards this understanding, the respondent agreed to pay an amount of Rs.11,00,00,000/- and accordingly it has issued two post- dated cheques with a clear understanding that the same shall be presented for collection only upon incorporation, that the petitioner cheated the respondent by wrongfully presenting the said cheques for payment even before the said company was incorporated and that the respondent has timely issued the stop pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for such a cryptic MOU between the parties while dealing with a very valuable subject matter of the contract, namely; manufacturing and exporting of gold ornaments. Be that as it may, under Section 433 read with Section 434 of the Act, a company cannot be ordered to be wound up, unless either the debt is admitted or the dispute as to the debt raised by the respondent is not bona fide. In the absence of a clear understanding between the parties stipulating that the petitioner will manufacture the jewellery from out of its own gold or at least any contemporaneous correspondence between the parties unequivocally proving the claim of the petitioner that it has manufactured the jewellery from out of its own gold and that the respondent has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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