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TMI Blog2018 (8) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... /11/2016 whereas, in terms of the said notification, the cut off date is 15/12/2016. Hence, the company petition is required to be heard by this court and it is not required to be transferred to NCLT. Hence the objection is rejected. With consent heard on the question of admission. 2/ By this petition under Section 439 of Companies Act, 1956 the petitioner is seeking winding up of respondent company under Section 433 (e) of the Act on the ground of inability to pay the debt. 3/ The case of petitioner is that the respondent company is engaged in the business of constructing roads and highways as also civil engineering works and petitioner is engaged in the business of supplying electronic tolling and traffic management equipment and high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms and conditions of the agreement. 5/ Learned counsel for petitioner referring to chart as contained in paragraph 7(e) of the petition has submitted that out of total amount reflected therein only a part payment has been made and outstanding amount of Rs. 42,41,993 has not been paid and that in the reply to the statutory notice the defence which is taken is a moonshine and since the respondent has neglected to pay the outstanding amount inspite of statutory notice and respondent company is running in losses, therefore, a case of winding up is made out. 6/ As against this learned counsel for respondent has submitted that the debt is bonafidely disputed and the amount is not payable by respondent and respondent is a commercially solven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any to pay a debt which is substantially disputed. It has also been held that provision of Section 433 (e) & (f) cannot be invoked where there is a bonafide dispute as to liability and it is the duty of the court to ascertain the causes for refusal to pay debt and if the debt is bonafide disputed on substantial ground petition for winding up should not be entertained and that the court should act with circumspection and examine whether winding up petition is used as ploy to pressurise company to pay substantially disputed debt and the court has to ascertain whether refusal was due to reasonable cause or existence of bonafide dispute which can be adjudicated only by trial in civil court and if not so adjudicated, cause serious prejudice to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l-settled that 'a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the court......." 22. The above mentioned decision was later followed by this Court in Madhusudan Gordhandas and Co. Vs. Madhu Woolen Industries (P) Ltd. The principles laid down in the above mentioned judgment have again been reiterated by this Court in Mediquip Systems (P) Ltd. Vs. Proxima Medical System GmbH, wherein this Court held that the defence raised by the appellant-company was a substantial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depends. 11/ It is also settled position in law that if the debt is bona-fidely disputed and defence is substantial one, no winding up order is to be passed. While examining this aspect it is to be seen that the defence should be in good faith and one of substance; it should likely to succeed in point of law and there should be prima face proof of facts on which the defence depends. (See: M/s Madhusudan Gordhandas and Co. Vs. Madhu Woolen Industries Pvt Ltd. Reported in 1971 (3) SCC 632; Mediquip Systems (P) Ltd. Vs. Proxima Medical System GMBH reported in 2005(7) SCC 42.) 12/ It is also settled that Section 433 should be seen in commercial sense (See: (2005) 7 SCC 42.) 13/ On examining the present case in the light of the aforesaid lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent company is running in losses therefore, it has inability to pay debt. But a perusal of the balance sheets enclosed as Annexure R-1 reveal that in the initial period respondent company was incurring losses but in financial year ending on 31st March 2016 it had earned profit. 17/ Counsel for respondent in this regard has also pointed out that since it is a BOT project with a concession period of 25 years, therefore, the entire cost of the project has been borne by the company which is to be recovered through toll collection during the concession period. Alongwith IA No. 3356/18, the respondent has filed the solvency certificate issued by State Bank of India and certificate of Chartered Accountant Krishnamurthy Jain and Suryawanshi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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