TMI Blog2015 (12) TMI 1721X X X X Extracts X X X X X X X X Extracts X X X X ..... misconceived. The company court cannot hold a full trial of the matter. The company court has to only see whether the ground appeared to be substantial. In my view, the ground of dispute raised is rather substantial. - Company Petition No. 340-341 of 2013, Company Petition No. 490, 491, 492 of 2013 - - - Dated:- 7-12-2015 - K. R. Shriram, J. For the Petitioner : Usha Srivastava i/b. M/s. Consulta Juris For the Respondent : Simil Purohit a/w. Mr. Nilesh Parab i/b. Sachin V. Masurkar ORDER 1. The company petition no.340 of 2013 is filed on the basis that the petitioner have a claim of Euro 447,798.50/- against the respondent which was payable under a letter of guarantee issued by the respondent on 2nd March, 2010. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrian exporter SML. The Letter of Guarantee also provided that SML may assign the whole or any part of their rights under this guarantee without the consent of the respondent to the petitioner among others mentioned therein. In view of the liberty granted under the Letter of Guarantee, SML assigned its claims under the invoices to the petitioner. The petitioner also notified SK Agrotech and also respondent. As the respondent did not pay the first installment, by a letter dated 23rd December, 2011 the petitioner called upon the respondent to make the payment. This was followed by another letter dated 25th June, 2012. As the respondent still did not make the payment, the petitioner through their advocate issued a statutory notice under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to the statutory notice but it is the respondent's case that the statutory notice itself was not delivered. The counsel for the petitioner submitted that the petitioner's all other correspondence have been received at the same address but it is a matter of mystery how the statutory notice could not be delivered. The counsel for the petitioner also pointed out that the endorsement on the envelope which stated closed is dated 13th August, 2012 and that was a Monday. 6. Be that as it may, the issue herein is whether the respondent has a bonafide defense. It is settled law that where parties raised a bonafide defense or a substantial dispute a company should not be wound up. In IBA Health (India) Private Limited vs. Info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly owing, then it has to be paid. If the company refuses to pay on no genuine and substantial grounds, it should not be able to avoid the statutory demand. The law should be allowed to proceed and if demand is not met and an application for liquidation is filed under Section 439 in reliance of the presumption under Section 434(1)(a) that the company is unable to pay it debts, the law should take its own course and the company of course will have an opportunity on the liquidation application to rebut that presumption. 22. An examination of the company's solvency may be a useful aid in determining whether the refusal to pay debt is a result of a bona fide dispute as to the liability or whether it reflects an inability to pay. Of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment sum was formulated based on the following proportions of the total amounts of MEDICOM produce license fee and/or all other payments received by MEDICOM from SP and/or SP/JV by virtue of the HICT Package I Contract. Further, it is stated therein that the settlement sum shall be valid for payments received by MEDICOM from SP and/or SP/JV under the HICT Package I Contract and/or the HIS Software applications modules contracted for the HICT Package I Contract with SP/JV only and it was conclusively agreed to that BITECH shall not in any circumstances whatsoever be entitled in law or otherwise for any payment for any other contracts including contracts involving MEDICOM and Solutions Protocol from the Government of Malaysia or otherwise, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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