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Nitya Electrocontrols Pvt. Ltd. Versus Unique Engineers Private Ltd.

Outstanding dues - winding up - Held that:- The facts reveal the respondent is raising this frivolous issue after a period of 2 years of supply of material only to wriggle out of its liability to pay the balance due to the petitioner and hence has neglected to pay without any cogent, substantial or genuine cause. It is no defence to say that the respondent has ability to pay but has choosen not to pay or that it had a lesser liability to pay. - In view of the above, this petition is admitted .....

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. The amount be paid within one month failing which the petitioner shall be entitled to publish the citation and apply for appointment of the Provisional Liquidator. - CO.PET. 896/2016 - Dated:- 4-8-2017 - MR. YOGESH KHANNA, J. For The Petitioner : Mr.Rajesh Banati and Mr.Vikram Singh, Advocates For The Respondent : Mr.Praveen Kr Singh, Mr.Utkarsh Singh and Mohammad Ziauddin Ahmad, Advocates. YOGESH KHANNA, J. 1. The respondent placed various purchase orders from time to time for supply of fan s .....

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total liability of ₹2,93,57,829/-; thus leaving a balance of ₹27,67,897/- as outstanding. The respondent also issued a cheque bearing No.615748 dated 15.03.2014 for ₹24,29,728/- for part payment, but was dishonoured for reasons payment stopped by the drawer . The payments later made were adjusted in the earlier invoices. The petitioner served the statutory notice dated 04.08.2016 claiming the balance of ₹27,67,897/- with interest @ 18% pa, but the respondent failed / negl .....

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t notes worth ₹20,33,046/- towards short supply/ non-providing of the services have been ignored by the petitioner, as stated in para 9 of preliminary objections in its reply. It read as under:- 9. It is submitted that if the entire payments as mentioned herein above made by the respondent to the petitioner by way of debit notes amounting to Rs.15,00,000/- and deductions amounting to Rs.5,33,046.25 towards short supply are taken into account, it will be seen that the respondent has paid an .....

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opy of the chart showing the details of the short supplies of materials made by the petitioner amounting to Rs.5,33,046/- is marked and enclosed herewith as Annexure R-2. 3. The respondent hence claim credit of ₹20,33,046/- towards the short supplies made at its different sites and admitted only an amount of ₹ 7,34,851 as payable; hence alleges the claim being a disputed debt the petition is not maintainable. The respondent relies upon its email dated 15.06.2016 which notes as under: .....

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s on which a doubt is raised if could be a part of email dated 15.06.2016, hence alleged to be created. Nevertheless all debit notes are dated 31.03.2016, much after the supplies were made till Oct-Nov-2013. From Nov 2013 till email dated 15.06.2016 there is not even a letter or an email or any other correspondence made on behalf of respondent qua short supply of goods. The respondent further relies upon an annexure R-3 viz. a purchase order dated 10.07.2013 which contains a warranty clause - wh .....

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even if we believe that it covers short supply then also such objection could have been raised within 15 months from 10.07.2013 which period end on 9th October 2015. Hence there was no occasion for the respondent to issue debit notes on 31.03.2016 and that too for short supply. 6. Since the respondent has failed to put on record any correspondence during the period from 17.08.2012 till 31.07.2013 or within 15 months after 10.07.2013 qua any alleged short supply, the plea of respondent appears to .....

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which cannot be so long as claimed by the respondent. 8. In Lohmann Rausher Gmbh v. Medisphere Marketing Pvt. Ltd. 117(2004) DLT 95 the court observed :- 22. Undisputably, goods under first invoice were received in the month of May, 2000 and under the second invoice in the month of September, 2000. Defendant, on receipt of the goods, did not indicate to the plaintiff that the goods were defective till as late as 31.12.2001. This was when the plaintiff had served upon the defendant a legal notice .....

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ochemicals Limited & Another (1994) 3 SCC 348; and Goel Brothers and Company Private Limited vs Yashodan Chit Fund Ltd 1979 Mh. LJ 607 to highlight the company petition is not maintainable in case of a disputed debt. There is no doubt to such preposition of law. 10. However in Indo Alusys Industries Ltd vs M/s Assotech Contract (India) Ltd 160 (2009) DLT 752 this Court held as under:- 19. It is well settled that a bogus or a sham dispute, contrived or concocted as a defence for a genuine and .....

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t Corporation of Uttar Pradesh Vs. North India Petro-Chemical Limited & Arn. relied upon by the respondent, have no application to the present case. 11. In V.V. Enterprises vs. Rungta Irrigation Ltd 209 (2014) DLT 748 Coordinate Bench of this Court observed as under:- 13. The disputes raised by the respondent are a mere ruse to avoid paying the amount due to the petitioner. In this view, the respondent is deemed to be unable to pay its debts on account of its failure to discharge the debt ow .....

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ued by the respondent had been dishonoured and the petitioner had taken steps for initiation of proceedings under the Negotiable Instrument Act, 1881. In the event that the respondent was aggrieved by any delay in supply of goods, the contemporaneous correspondence in 2010 and even in early part of 2011 would indicate the same. In absence of any dispute at the material time, the contention that the debt claimed by the petitioner is disputed cannot be accepted. 13. The Apex Court in M/s Madhusuda .....

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