TMI Blog2016 (8) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... uly, 2014. This would clearly be beyond the period of 3 years and, therefore, the claim on the face of it would appear to be time barred. Respondent Company has done an internal audit which would reflect that even under the third purchase order, as many as 37 machines were not working. It is also the case of the Respondent – Company, that there was a serious delay in supplying the machines, which has caused great loss to the Respondent Company by virtue of the fact that they lost the security deposit on premises that they had taken on leave and licence in which these machines where to be housed. Looking to all these factors, I do not think, that this is a case where the debt of the Petitioner is undisputed. To my mind, there is a bonafid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther amended on 1st November, 2008. 3. Pursuant to this purchase order, the Petitioner supplied the gaming machines to the Respondent Company on a regular credit basis, which according to the Petitioner, were accepted by the Respondent without any protest whatsoever. For the supply of these machines, the Petitioner raised its 10 invoices, the details of which are mentioned in Paragraph No. 8 of the Petition. Thereafter, it is the case of the Petitioner that the Respondent Company, before taking delivery of the said machines issued preinspection certificates certifying that the goods shipped under the said invoices were checked by the agent of the Respondent Company and were found to be in good working and acceptable condition. These cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ashutesh Thipsay, the learned counsel appearing on behalf of the Petitioner, submitted that there was no dispute with reference to the monies owed by the Respondent Company to the Petitioner. He submitted that in fact the Respondent Company has admitted its liability in full as evidenced by the balance confirmation dated 23rd April, 2012 ( Exhibit 'C' to the Petition). He submitted that the disputes raised by the Respondent Company in its affidavit in reply are wholly illusory and moonshine. He submitted that the defence of defects in the machines supplied by the Petitioner to the Respondent Company all relate to machines that were supplied much earlier and for which the Respondent Company had already made full payment. There was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in damages against the Petitioner in the sum of rupees approximately 15 Crores. 8. For all the aforesaid reasons, Mr. Cama, submitted this is not a fit case where this Court should exercise its equitable jurisdiction and admit this Company Petition. 9. I have heard, the learned counsel for the parties at length and perused the papers and proceedings in the Company Petition as well as the annexure thereto. On the first contention raised by Mr. Cama, I find considerable force that the claim made in the present Petition, Prima facie would appear to be barred by the law of limitation. It is not in dispute that the supplies of these machineries took place between the period of 10th June, 2008 to 25th February, 2009. Even, if where to go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note is that, despite giving several opportunities to the Petitioner, no affidavitinrejoinder has been filed controverting the averments made in the affidavit in reply. At this stage, I am not inclined to reject this explanation outright and therefore proceed to admit this winding up Petition. The Petitioner may very well be right that the balance confirmation issued by the Respondent Company is binding on them which would then extend the period of limitation. However, this would have to be established by leading necessary evidence and I, cannot, in my summary jurisdiction, reject this contention outright. In any event, this being something that is certainly arguable would certainly give rise to a bonafide defence to the Company Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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