TMI Blog2018 (4) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods were not delivered as noted in one of the delivery challans. It has also been pleaded that the rates have never been finalised as is sought to be claimed in the invoices. On the face of the facts on record, it is not possible to conclude that any debt is due to the petitioner. In my opinion the debt is bona fidely disputed by the respondent. It is settled legal position there where is a genuine dispute on the debt claimed no winding up petition would lie. A Company Court retains discretion and is not expected to hold a full trial of the matter. In the facts of this case in my opinion the present winding up petition for the claim of ₹ 1,10,0000 would not lie. Direct that on the petitioner filing an affidavit stating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an unsigned cheque of ₹ 1,94,959/- was attached with the said e-mail as a part payment for the invoices raised by the petitioner company and an assurance was given that the said cheque will be signed once the authorised signatory resumes his office. It is also pleaded that the respondents have not supplied C-Forms to the petitioner for the invoice issued in the year 2011-12 and 2012-13. 2. The respondents have filed their reply. In the reply various defences have been taken. The respondents does not deny that the petitioner company supplied goods in respect of the bills mentioned, However, it is stated that the goods were not supplied according to the satisfaction of the respondent company and there were manufacturing defects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of the invoices which were supplied. 4. Learned counsel for the respondents has reiterated the contentions of the reply. He has pointed out that even in the invoices which were filed by the petitioner specially the invoice No.01.94 dated 10.9.2012 the respondents have noted that the material has been received but a cable and two indicators have not been received and will be delivered on the next day. He has also stressed that the rates were never agreed upon. He submits that there was an admission on the part of the respondents that a sum of ₹ 1,94,959/- was due and payable and hence a sum of ₹ 2 lac has been paid to the petitioner. On C-Forms he has taken the same defence. 5. In a petition for winding up in case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt. A Division Bench of the Allahabad High Court in Ultimate Advertising and Marketing Vs G.B. Laboratories Ltd., Kanpur, AIR 1998 AII 320 , held as follows:- 7. In case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear admission on the part of the respondents the C-Forms were liable to be delivered to the respondents for which no steps have been taken by the respondent. This is despite orders having been passed by this Court on 3.3.2014 where this court had noted the submission of the respondents that if the C-Forms are liable to be given by the respondents the same shall be done. On 13.5.2014 a direction was passed by this court directing the respondents to comply with the earlier order dated 3.3.2014 and pay to the petitioner the agreed sum of ₹ 2 lacs in addition to the C-Forms. 9. These orders have not been challenged. No doubt the respondents have paid a sum of ₹ 2 Lakh to the petitioner. The complete C- Forms, however, have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld warrant an inference that the respondent company is unable to pay a debt due. 13. Learned counsel for the petitioner has vehemently stated that all the invoices are admitted. The respondent s purchase orders are also on record. He also pleads that the delivery challans and delivery acknowledgments are also on record. Based on these facts he pleads that the respondents are liable to pay the amount for the five invoices and has wrongly only made a rough payment of three invoices of ₹ 2 lacs and have not made the payment of the last two bills which is roughly ₹ 1,10,467/-. 14. The respondents have disputed the liability saying that some of the goods were not delivered as noted in one of the delivery challans. It has al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
