TMI Blog2014 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... to by the respondent are also generic in nature and it is material to note that all the complaints are in the month of April, 2013 i.e. much after the payments of the invoices had become due and payable. It is also material to note that one of the customers who is alleged to have complained is also a party related to the respondent. The debit note on the basis of which the respondent claims that amounts are not payable to the petitioner is dated 08.05.2013 which is more than two months after the last invoice became due and payable and after the respondent had received the notice of the present petition. Although, the respondent has filed photograph of goods supplied which is contended to be defective, there is no communication on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods to the respondent since over two years and the business relations amongst the parties are stated to have been cordial. The only complaint that the petitioner had was regarding minor delays in payment of the invoices. However, there is no dispute that the payments, for the goods delivered in the past, were effected. 3.2 The petitioner supplied certain goods in the month of November and December, 2012. The goods were supplied on credit and the invoices were due and payable after a specified period. The details of the invoices and the respective dates on which the same were due for payment are as under: S. No. Invoice No. Date Amount (Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner by a letter dated 30.01.2013 and the allegation that there were any defects which had been pointed out earlier was stoutly disputed. The petitioner also exercised its right to curtail the credit period and called upon the respondent to immediately discharge the entire payment against the pending invoices. No further communication was issued by the respondent in this respect thereafter. 3.5 Given the fact that the payments due had not been effected by the respondent, the petitioner was constrained to issue a notice dated 16.02.2013, under Section 434 (1)(a) of the Act, calling upon the respondent to make the payment. This notice also elicited no response from the respondent. 3.6 In view of the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from receipt of goods, whichever is earlier. xx xx xx xx xx xx 9. In respect of any complaint of whatsoever nature, that may be lodged in respect of the goods, the Buyers agree to first make payments in full before any action or settlement is negotiated. xx xx xx xx xx xx 11. The Buyer shall pay interest at the rate of 18% per annum for payments made beyond due date until date of realization of Cheques, Demand Draft without prejudice to any of the Manufacturers rights and remedies under these conditions. The manufacturers reserve the right to cancel any contract or part of the contract for non-payment of accrued outstanding. xx xx xx xx xx xx 17. Manufacturers reserves the right to wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. 8. I have heard the learned counsel for the parties. 9. The only aspect that is required to be considered in the present proceedings is whether the defence raised by the respondent is a sham defence. It is trite law that winding up proceedings cannot be preferred in order to pressurize a party to make payments which are disputed. However, it is equally well accepted that a defence which is spurious and illusory and created only for the purposes of defeating a legitimate claim of the creditor would not be entertained. The defence raised by the respondent has to be tested on this anvil. In the present case, the facts clearly indicate that the invoices were due and payable on 24.01.2013, 20.02.2013 and 07.03.2013 respectively. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of the Act had elicited no response and even at that stage, the respondent had not crystallized any issue. 12. In the given circumstances, I am in no doubt that the present defence raised by the respondent is spurious and created for the purposes of resisting the present petition. 13. In view of the above, the present petition is admitted. The petitioner is directed to publish the citation in Statesman (English) and Jansatta (Hindi). The citation be also published in Delhi Gazette for hearing to be held on 17.07.2014. 14. However, in order to enable the respondent company to settle the amounts payable to the petitioner, I deem it appropriate that the direction for publication be not given effect to before the expiry of two w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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