TMI Blog2018 (8) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... bona-fidely disputed debts as a substitute for recovery suit. The aforesaid analysis of facts clearly reveal that in the present case not only alleged debt is bona-fidely disputed by respondent but financial condition of the company and other circumstances noted above do not make out a case for winding up the company under Section 433(e) of the Act. Hence the company petition is dismissed. - Company Petition No. 26/2016 - - - Dated:- 20-7-2018 - SHRI PRAKASH SHRIVASTAVA J. Shri Joydeep Bhattacharya learned counsel for petitioner. Shri Paresh Joshi learned counsel for the respondent. O R D E R The Registry has raised an objection in view of the notification dated 7/12/2016 for transferring the matter to the NCLT. The respondent in pursuance to the direction of this court has filed an affidavit dated 7/6/2018 disclosing that the notice of the present company petition was served upon the respondent on 5/11/2016 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nshine 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 solvent company having 200 employees involved in BOT project, therefore, for such a disputed debt no case for winding up is made out. 7/ I have heard the learned counsel for parties and perused the record. 8/ It is also the settled position in law that if debt is bonafide disputed on substantial grounds, petition for winding up shall not be entertained. In such a case party seeking winding up can not be regarded as creditor of company for purpose of winding up. If the debt is bonafide disputed, there can not be neglect to pay within the meaning of Section 433(1)(a) of the Companies Act and if there is no neglect, the deeming provision does not come into play. 9/ The Supreme Court in the matter of IBA Health (India) Private Limited Vs. Info-Drive Systems SDN. BHD. reported in (2010) 10 SCC 553 has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miss 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. 21. In this connection, reference may be made to the judgment of this Court in Amalgamated Commercial Traders (P) Ltd. Vs. A.C.K. Krishnaswami in which this court held that (Comp Cas P. 463) It is well-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is noticed that there is no document on record wherein the respondent has admitted liability to pay the alleged outstanding amount of ₹ 42,41,993/-. There is also no document on record conclusively showing the liability on the part of respondent as claimed. On the contrary, the reply and documents enclosed therewith by respondent reveal that the debt is bonafidely disputed. 14/ In reply to the statutory notice dated 12/11/15 itself the respondent had denied that the amount of ₹ 42,41,993/- was payable. As per reply against service regarding TMS system the petitioner had raised invoice of ₹ 1,87,95,000/- out of which the respondent had paid ₹ 1,56,92,636/- including the TDS of ₹ 13,65,650/- and debited ₹ 29,02,364/- in view of deficiency in service. For AMC petitioner had raised invoice of ₹ 15,73,040/- and respondent had paid sum of ₹ 11,79,780/- after deducting ₹ 3,93,260/- i.e. 25% of the invoice value as penalty towards poor performance. Further stand of respondent is that against the invoice of ₹ 4,62,119/- respondent had paid of ₹ 3,52,065/- after debiting sum of ₹ 1,10,054/- as per agreement towards ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
