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TMI Blog2018 (5) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... on two balance confirmation letters said to have been executed by the respondent whereby the respondent has confirmed the balance due to be Rs. 9,26,252/- as on 28.02.2013 and also on 15.10.2013. It has also been pleaded that the respondent issued three cheques dated 08.03.2013, 15.03.2013 and 21.03.2013 for Rs. 3 lakhs, Rs. 3 lakhs and Rs. 3,26,000/- respectively in favour of the petitioner to clear the outstanding liability of Rs. 9,26,252/-. However, when the first cheque which is dated 08.03.2013 for Rs. 3 lakhs was presented, the bankers returned it noting that the payment has been stopped. A statutory notice was served on the respondent on 20.08.2014 under Section 434 of the Companies Act. The respondent did not comply with the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondent has relied upon e-mails dated 02.12.2013 and 15.12.2013 which are said to have been sent to the petitioner to contend that despite these communications, the necessary tests were not carried out by the petitioner. He has also pointed out that the post dated cheques were only given as a security and as the material was of poor quality, the respondent was justified in stopping the payment of the cheques. 5. There are few aspects which are noteworthy and which make me to conclude that the defence of the respondent is a sham. Firstly, there is no dispute that the goods have been duly received by the respondent. These goods are Ready Mix Concrete. A question was posed to the learned counsel for the respondent that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is placed on record. 7. I may further note that the respondent had given three post dated cheques totalling Rs. 9,26,252/- which have not been encashed. The only argument is that these were given as security and "stop payment" instructions were issued as the quality of the material supplied by the petitioner was found to be sub-standard. The post dated cheques were dated 08.03.2013, 15.03.2013 and 21.03.2013. The e-mail sent by the respondent pointing out that the material of the petitioner has failed the Rebound Hammer Test is dated 02.12.2013. There appears to be no correlation between the so called Test carried out by the respondent to determine the quality of the material supplied by the petitioner and the stop payment instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed legal position is that the debts claimed should be payable by the respondent company. It is only where the respondent company raises a bona fide dispute then no winding up petition would lie. Reference in this context may be had to the judgement of the Supreme Court in IBA Health (I) Pvt. Ltd. vs. Info-Drive Systems Sdn.Bhd., (2010) (4) CompLJ 481 (SC) where the Supreme Court held as follows:- "17. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orne by the petitioner who shall deposit a sum Rs. 75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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