TMI Blog2015 (7) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... ng before a criminal court. The plea of the respondent raised for the first time in the additional counter-affidavit that it has made over payment of ₹ 25,59,240 was not supported by any correspondence exchanged between the parties. For the first time, the respondent has disputed the two invoices dated July 12, 2008, for ₹ 2.47 crores and August 14, 2008, for ₹ 1.36 crores in the additional counter-affidavit only on the ground that they were not reflected in the VAT audit conducted by the State Government. It has not come out with any specific plea that those invoices were either fabricated or concocted. This court is of the opinion that the denial of debt by the respondent is not bona fide and that the same is a cloak or moonshine to evade payment of an admitted debt. Having admitted in categorical terms that it is liable to pay ₹ 1.50 crores subject, however, to reconciliation, the respondent cannot resile from the said admission and seek to deny the debt. The law is well-settled that where the debt is liable to be paid, a petition for winding up is maintainable even in the absence of precise quantification (see : Madhusudan Gordhandas and Co. v. Madhu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the petitioner and M/s. SARK Systems India Ltd., and its chairman Mr. J. S. R. Durga Prasad, in which the respondent agreed to pay the outstanding amount with interest at the rate of 21 per cent. and also issued a cheque dated July 20, 2011, for ₹ 2,18,64,235 which includes interest also, and that the said cheque was dishonoured by the bank with the endorsement account closed . That on enquiries, the petitioner came to know that the name of M/s. SARK Systems India Ltd., is changed as M/s. VEDAVAAG Systems Ltd., and that its registered office is also changed to the address given in the cause title of the petition. That after service of notice dated December 7, 2011, under section 138 of the N. I. Act, to which no reply was received from the respondent, the petitioner has filed C. C. No. 17 of 2012 in the court of the XI Additional Chief Metropolitan Magistrate, Secunderabad, against the respondent, under section 138 of the N. I. Act, for dishonouring the cheque and that it has also got statutory notice dated December 4, 2011, issued to the respondent and also M/s. SARK Systems India Ltd., demanding payment of ₹ 2,35,72,083 with interest at the rate of 21 per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount apart from an unsecured advance of ₹ 2 crores. As regards letters dated December 29, 2009 and December 30, 2009, wherein the debt was purportedly admitted, it is averred that the proprietor of the petitioner was sending SMSs from his mobile to the director of the respondent Mr. J. S. R. Durga Prasad threatening him with involvement of media and also his going on fast unto death, that he has even threatened to commit suicide in front of the office of the respondent and that under coercion and threat, letter dated December 29, 2009, of the managing director on the company letterhead and letter dated December 30, 2009, by the managing director in his personal capacity were issued at midnight between 12.00 a.m. and 1.00 a.m. on the intervening night of December 29/30, 2009. The additional counter-affidavit also relied upon the tax audit undertaken by the State Government of Andhra Pradesh and pleaded that nowhere in the said tax audit, invoice dated July 12, 2008, for ₹ 2.47 crores and invoice dated August 14, 2008, for ₹ 1.36 crores were reflected. 5. I have heard Mr. Vedula Srinivas, learned counsel for the petitioner, and Mr. Amancharla V. Gopala Rao, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise a statutory right conferred on him by these provisions to seek winding up of a company, which is unable to pay a debt in respect of which there is no bona fide dispute. The law is further well-settled that mere solvency of the debtor is not a stand alone criterion to refuse winding up if the creditor is able to prove to the court that the debtor, despite its capacity to pay, has not been paying the debt (see Amalgamated Commercial Traders (P.) Ltd. v. A. C. K. Krishnaswami [1965] 35 Comp Cas 456 (SC), IBA Health (I) (P.) Ltd. v. Info-Drive Systems Sdn. Bhd. [2010] 104 SCL 367 (SC) and Indiabulls Housing Finance Ltd. v. South Asian Agro Industries Ltd. [2014] 187 Comp Cas 205 (T AP). 9. For considering admission of the company petition, this court has to primarily examine whether the debt is a bona fide disputed one or not. It needs to be pointed in the first place that the respondent has been improving its case from stage to stage. It has failed to issue any reply to the two statutory notices received by it. No explanation whatsoever is forthcoming from the respondent for its failure to reply. Any prudent company, which is not liable to pay the debt, is not expect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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