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TMI Blog2015 (12) TMI 1721X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent which was payable under a letter of guarantee issued by the respondent on 2nd March, 2010. According to the petitioner the said amount is debt payable by the respondent company. As the respondent has failed and neglected to make the payment, it could be considered that they are unable to pay its admitted debts, hence it is just and equitable that the respondent company be wound up. 2. The petitioner states that the respondent is the parent company of M/s. S.K. Agrotech Industries Limited (SK Agrotech). SK Agrotech had approached Austrian exporter SML Maschinengesellschaft mbH, for purchase of Co-extrusion Calendering Line for Pet Sheet (Equipment) on 2nd December, 2009. The parties had agreed to define the payment schedule. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill did not make the payment, the petitioner through their advocate issued a statutory notice under section 433 (e) read with 434 of the Companies Act, 1956. This statutory notice has been returned with the endorsement "closed". 4. Though the respondent have raised issue on this statutory notice, their primary defense is that the equipments/machineries supplied by SML did not function satisfactorily and the entire project for which SK Agrotech had imported the machinery did not take off. According to the respondent, SK Agrotech, the promoters of SK Agrotech/respondent had invested Rs. 19.43/- crores out of the project cost of Rs. 52.60/- crores. For the balance, the respondent had also sought finance from State Bank of India in the sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a company should not be wound up. In IBA Health (India) Private Limited vs. Info-Drive Systems Sdn. Bhd., (2010) 10 SCC 553 paragraph 20 to 23 reads as under :- "20. The principles laid down in the above-mentioned cases indicate that if the debt is bona fide disputed, there cannot be "neglect to pay" within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to 14 pay its debts is not substantiated and non-payment of the amount of such a bona fide disputed debt cannot be termed as "neglect to pay" so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the liability or whether it reflects an inability to pay. Of course, if there is no dispute as to the company's liability, it is difficult to hold that the company should be able to pay the debt merely by proving that it is able to pay the debts. If the debt is an undisputedly owing, then it should be paid. If the company refuses to pay, without good reason, it should not be able to avoid the statutory demand by proving, at the statutory demand stage, that it is solvent. In other words, commercial solvency can be seen as relevant as to whether there was a dispute as to the debt, not as a ground in itself, that means it cannot be characterized as a stand alone ground. 23. We have gone through various terms and conditions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Solutions Protocol from the Government of Malaysia or otherwise, whether in Malaysia or any other country. Further, Clause (4) also stipulated that the parties have acknowledged that the obligation of MEDICOM to pay BITECH the settlement sum shall always be subject to MEDICOM (or its representatives or nominees) having received payments of sufficient value from SP and/or SP/JV to enable the payment of upto the maximum amount of the settlement sum to be made on or before 31.12.2006, which is the Cut-off date. Further, it is seen that one of the terms of the compromise was that the respondent would make reasonable efforts to persuade M/s. Solutions Protocol to settle the invoices of the appellant at the earliest." 7. I am satisfied from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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