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2016 (8) TMI 919 - BOMBAY HIGH COURT

2016 (8) TMI 919 - BOMBAY HIGH COURT - TMI - Winding up Petition - time barred petition - Held that:- 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 by the credit period mentioned in the third purchase order (being a period of 730 days), the Respondent Company .....

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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 bonafide dispute raised by the Respondent Company. In these circumst .....

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tion Limited, on the ground that is unable to pay its debts. It is the case of the Petitioner, that the Respondent Company is indebted to the Petitioner in the sum JPY 64,516,217 (Japanese Yen). It is the case of the Petitioner that these amounts have not been paid and, therefore, the present Company Petition. 2. The brief facts giving rise to the present controversy are that the Petitioner being a proprietory concern is in the business of supplying gaming machines. It is the case of the Petitio .....

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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 un .....

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alance confirmation issued by the Respondent Company (Exhibit 'C' to the Petition) to contend that the entire amount claimed in the present Company Petition has been admitted by the Respondent - Company. 4. In view of defaults being committed in payments of the amounts due to the Petitioner,on 23rd April 2012, the Petitioner was constrained to issue a statutory notice under Section 434 of the Companies Act, 1956, calling upon the Respondent Company to pay its dues failing which winding u .....

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d 23rd March, 2015. By virtue of this reply, they have resisted the admission of this Company Petition. 6. In this factual back ground, Mr. 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' .....

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present Petition. For all these reasons, he submitted that there is no bonafide defence to the Company Petition and the same ought to be admitted and consequential directions be given for advertisement etc. 7. On the other hand, Mr. Cama, the learned counsel appearing on behalf of the Respondent Company submitted as follows: (a) That, the claim made in the present Petition is clearly barred by the law of limitation. (b) In view of the explanation given by the Respondent Company in Paragraph No. .....

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which machines were defective and had to be reexported for repairs etc. Even, as far as the machines supplied under the invoices which form the subject matter of this Petition are concerned, a lot of these machines also were found to be defective. This alone would give rise to a bonafide defence to the Company Petition as the Respondent Company had a counterclaim in damages against the Petitioner in the sum of rupees approximately 15 Crores. 8. For all the aforesaid reasons, Mr. Cama, submitted .....

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se machineries took place between the period of 10th June, 2008 to 25th February, 2009. Even, if where to go by the credit period mentioned in the third purchase order (being a period of 730 days), the Respondent Company was required to make payment by 24th February, 2011. The period of limitation of 3 years would start from this date. Admittedly, the present Company Petition has been lodged on 31st July, 2014. This would clearly be beyond the period of 3 years and, therefore, the claim on the f .....

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s affidavitinreply has specifically averred that the gentleman who has issued this balance confirmation was taking care of the accounts department of the foods and beverage division of the Respondent Company. The said balance confirmation appears to have been issued by the said gentleman on a simple mathematical computation of the invoices raised versus the amounts paid. The said gentleman was not aware of the disputes raised between the Petitioner and the Respondent Company in relation to the d .....

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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 Petition which would entail its dismissal. 11. Even otherwise, I find considerable force in the argument of Mr. Cama, that in the facts of the present case, the .....

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