TMI Blog2018 (3) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause. Once an Arbitration Clause is provided under the agreement executed between the parties, Arbitration remedy available under the contract has to be invoked rather than pressurizing the respondent to make the payment of dues as claimed, by filing company petition for winding up of the company. It is settled law that the company cannot be wind up when there is bonafide dispute as enunciated by the Hon'ble Apex Court in the case of MADHUSUDAN GORDHANDAS & CO. [1971 (10) TMI 49 - SUPREME COURT OF INDIA]. In such circumstances, no ground made out by the petitioner to wind up the company which is functioning and the defence is a substantial one. - Company Petition No.239/2014 - - - Dated:- 14-3-2018 - MRS. S. SUJATHA J. PETITION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, the respondent- company placed several purchase orders on the petitioner seeking supply of the petitioner s products. Based on such purchase orders, the petitioner would supply the products sought for and raise invoices on the respondent-company, against the goods supplied. It is the contention of the petitioner that out of the several invoices raised towards supply of goods during the term of the said agreement, there are totally 8 invoices raised between the months August 2012 and November 2012 which remained due and payable by the respondent- company amounting to ₹ 11,73,340/- [Rupees Eleven Lakh Seventy Three Thousand and Three Hundred Forty Only] to the petitioner in addition to a sum of ₹ 3,56,594/- [Rupees Three la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder which was complied with, in the initial stages. However, the petitioner off late started invoicing the products which was not ordered, slow moving products and out dated products. The respondent-company has protested for such abrupt supplies and also has cancelled the orders. That the petitioner failed to employ the field force for effecting the sales as per the agreement and the products were dumped in the premises of the respondent-company. Without field force support, it was impossible for the respondent-company to sell the products of the petitioner. Further, non-moving and dead stock worth ₹ 12,98,718.24/- is lying idle in the Godown of the respondent-company, which fact is well within the personal knowledge of the managemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-company placing reliance on the emails dated October 7th 2009, is making an attempt to dispute the dues corresponding to these invoices. The emails referred to by the respondent-company relates to the earlier period which is no way relevant for the adjudication of the present petition. The dues being admitted as per Annexure-F and not paid, respondent-company is liable to wound up. 5. The learned counsel for the respondent- company drawing the attention of this Court to agreement entered into between the parties would submit that the Clause (H) (1) (b) provides that the Company, in its sole discretion, may repurchase from the Distributor at the net price paid by the Distributor plus actual transaction and import duties thereon less n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of MADHUSUDAN GORDHANDAS CO. V/s. MADHU WOOLLEN INDUSTRIES PVT. LTD., reported in AIR 1971 SC 2600 , has categorically held that if the debt is bonfide disputed and the defence is a substantial one, the Court will not wind up the company. Where the debt is undisputed the Court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt. Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the Court will make a winding up order without requiring the creditor to quantity the debt precisely. The principles on which the Court acts are, first that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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