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2016 (12) TMI 366 - PUNJAB AND HARYANA HIGH COURT

2016 (12) TMI 366 - PUNJAB AND HARYANA HIGH COURT - TMI - Maintainability of appeal - non admitting the liability to pay the remaining amount - winding up petition - Held that:- The petition deserves to be dismissed because of the disputed questions of fact about the deliver of goods purchased by the respondent for which the Division Bench has held that if the triable issues are raised, the summary jurisdiction of the Company Court cannot be invoked in order to compel the company to pay the amou .....

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the petitioner- Company is in the business of manufacturing and repair of transformers, stabilizers etc. The respondent- Company placed an order on 17.11.2011 for one transformer capacity 215 KVA 11/0.433 which was allegedly supplied vide invoice No.000025 dated 30.11.2011 which includes BT 55 transformer oil 300 ltr. for a sum of ₹ 3,37,600/-. It is further alleged that the respondent- Company gave an advance of ₹ 50,000/- vide cheque No.025918 dated 30.11.2011 at the time of placin .....

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hing this Court to which no reply is filed. After notice, the respondent has put in appearance and filed its reply in which it is admitted that the respondent has placed the order for purchase of transformer and paid ₹ 2,20,000/- out of the total amount of ₹ 3,37,600/-. However, it is categorically denied that the petitioner had delivered the transformer. It is also alleged that the petitioner did not mention in its petition that the respondent has paid ₹ 2,20,000/- and restric .....

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/- despite the fact that a sum of ₹ 2,20,000/- has already been paid to the petitioner. The petitioner filed rejoinder in which it is clarified that it had received ₹ 2,20,000/- but it is denied that they have not delivered the transformer purchased by the respondent. Counsel for the petitioner has thus submitted that once transformer has been delivered, invoice has been admitted by the respondent, the part payment is also admitted, the respondent is liable to pay the remaining amoun .....

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this Court rendered in the case of Yadavindra Industries (Drinks and Agencies) Pvt. Ltd. v. Ulka Advertising Pvt. Ltd., Company Appeal No.6 of 1989, dated 24.03.1995, 1995(3) R.R.R. 555, to contend that the words used in the provisions unable to pay has a great significance as it is to be distinguished from other works like refusing to pay' or neglecting to pay' or disputing its liability to pay'. After hearing learned counsel for the parties, I am of the considered opinion that the .....

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be wound up by the Court. Clause (e) is relevant for the present case. It lays down that a company may be wound be up by the Court If it is unable to pay its debts. The use of the word unable is very significant. It is to be distinguished from other words like refusing to pay' or neglecting to pay' or disputing its liability to pay'. In the context, the expression unable to pay indicates that the inability to pay arises out of the solvency or financial position of the company. The e .....

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