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M/s Shital Fibers Ltd. Versus M/s Indian Acrylics Limited

2016 (5) TMI 644 - PUNJAB AND HARYANA HIGH COURT

Winding up - whether there is a bona fide dispute as regards the rest of the consignment in respect whereof the respondent makes its claim - Held that:- As there is no bona fide dispute, there is no question of directing the respondent to repay the amount. Thus, in view thereof, while the respondent is entitled to retain the amount, the petition is liable to be dismissed on account of the appellant having satisfied the respondent’s claim to the extent mentioned in the impugned order.

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ed Judge regarding the quantum to be paid by the appellant to the respondent nor filed an appeal on the ground that the learned Judge has not taken into consideration the element of interest. The question of interest is, therefore, kept open.

In the circumstances, the appeal is dismissed and the respondent shall be entitled to retain the amount paid pursuant to the order dated 24.12.2015. It is clarified that in view of this payment, the petition itself does not survive. This is, howe .....

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he order of the learned Company Judge ordering the petition filed by the respondent for winding up the appellant to be admitted in the event of the respondent not settling the petitioner s dues. 2. The respondent i.e. the petitioning-creditor filed a petition for winding up the appellant inter alia on the ground that it is unable to pay its debts. The respondent s claim is for the price of goods viz. acrylic yarn, sold and delivered by it to the appellant. The claim in the sum of ₹ 8,92,72 .....

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appellant credit in the sum of ₹ 6,22,073/- in respect of the goods that were returned by the appellant to the respondent claiming the same to be defective. The respondent also granted the appellant credit in the sum of ₹ 5 lacs on account of the dispute regarding the quality of a further quantity of the said goods. 5. The question is whether there is a bona fide dispute as regards the rest of the consignment in respect whereof the respondent makes its claim. 6. The appellant relies .....

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founded. We see no reason to draw such an inference. Indeed, the grant of credit would also indicate that the respondent fairly acknowledged the defects when there were any and that the rest of the consignment met with the contractual specifications. It is necessary, therefore, to examine the other surrounding facts and circumstances to judge the rival contentions. 8. Firstly, when the appellant raised a dispute about the quality and the same was acknowledged by the respondent it was reflected i .....

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respondent served a statutory notice dated 25.08.2008. The appellant s reply dated 10.09.2008 to the statutory notice does not refer to an oral agreement much less an agreement by the respondent to pay the appellant compensation for the alleged defective goods. This belies the defence now raised in the reply. 9. There is yet another fact which clearly disentitles the appellant to any credit in respect of the balance goods. The appellant, admittedly, retained the goods and, in fact, used the goo .....

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g the quality of the product. Moreover, the appellant has not furnished any details regarding its transactions with its customers involving the sale of goods manufactured from the raw material supplied by the respondent. There is nothing to indicate that the appellant suffered any damages on account thereof or that the appellant was not paid for the same. 10. In these circumstances, the learned Judge rightly rejected the appellant s contentions. In our opinion, there is no bona fide dispute rais .....

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Singh, the learned counsel appearing on behalf of the respondent, rightly submitted, the test is whether there is a bona fide dispute or not and whether the company has admitted the claim or not. In most cases, the company sought to be wound up does not admit its liability. It can hardly be suggested that merely because a debt has not been specifically or impliedly admitted a petition for winding up is not maintainable. We agree with Mr. Amandeep Singh that such a view would render the provisio .....

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t of the appellant s liability. As we mentioned earlier, the learned Company Judge ordered the petition to be admitted only in the event of it not satisfying the respondent s claim. In paragraph-11 of the impugned order, the learned Judge granted the appellant an opportunity to settle the accounts with the petitioner-company by 31.12.2015. The learned Judge has not specifically mentioned the amount in the operative part of the order. The order obviously granted the appellant an opportunity to pa .....

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