TMI Blog2018 (9) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been advanced by the learned counsel for the parties and came to the conclusion that the liability has been disputed by the respondent – company and, therefore, it is not proper to invoke the provisions of Section 433 (e) and (f) of the Act. We are completely agreed with the view taken by the learned Company Judge. No case to interfere with the well-reasoned order passed by the learned Company Judge, as prayed is made out - Company Appeal No. 1/2018 - - - Dated:- 2-8-2018 - P.K. Jaiswal And S.K. Awasthi JJ. For the Appellant : Shri Vijay Assudani, learned counsel For the Respondent : Shri Vishal Baheti, learned counsel ORDER Heard. This company appeal under Section 483 of Companies Act, 1956 has been filed against the order dated 15/03/2018 by which the learned Company Judge rejected the application filed by the appellant for winding up of respondent - Company under Section 433(e) and (f) read with Section 434 and 439 of the Companies Act( in short ... the Act ). 2. The appellant was having 482 shares which have been allotted in lieu of the professional fee and that the respondent-Company was incorporated for the business of running hospital, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleries Ltd., passed in Company Petition No.15/1999, Resham Singh and Co. Ltd. Vs. Daewoo Motors India Ltd. reported in 2013(Vol.116) Company Cases 529 has held that the liability as pointed out by the appellant has been disputed by the respondent Company. 8. The appellant was carrying out the operation with the aid of his own navigation machine or charge of the said navigation machine are recovered. The amount which has been claimed by the appellant towards the professional fee, has also been denied and it has been stated that no such amount of ₹ 89,94,918/- is due and payable to the appellant. Not a single document has been filed before the learned Company Judge admitting the liability on record. The said ledger account was not filed along with the company petition and was also not signed by any of the parties and is a disputed document and, therefore, appellant is required to lead evidence and establish the debt and prayed for dismissal of the appeal. Para 9 to 11 of order dated 15/03/2018, passed in Company Petition No.24/2016 are relevant which reads as under :- 9. The Supreme Court in the matter of M/s. Madhusudan Gordhandas Co. Vs. Madhu Woolen Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and that the company court at the stage of a winding up petition is not expected to hold a full trial of the matter. This Court also noting the above position in the matter of M/s. Alpha Packaging Ltd. Vs. M/s. Som Distelleries Ltd. vide order dated 12.11.2014 had dismissed the Company Petition No.15/1999 since the amount due in that case was not crystallized and there was a bonafide dispute with regard to liability of the respondent to pay the amount to the petitioner and the petitioner had failed to prove that the condition of insolvency in the commercial sense in respect of respondent exists. Same is the position of law reiterated by the Delhi High Court in the matter of Resham Singh and Co. Ltd. Vs. Daewoo Motors India Ltd. reported in 2013(Vol.116) Company Cases 529 with further clarification that pendency of civil suit for realisation of amount does not oust jurisdiction of the Company Court. 10. On examining the present case in the light of the aforesaid position in law, it is noticed that the petitioner is claiming that there is unpaid professio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Returns and submitted that the TDS amount has been shown as income and these are the corroborating evidence which has been filed along with the petition filed under Section 433(e) and (f) of the Act. 10. The learned Company Judge committed an error in holding that these amounts are disputed amounts and appellant is required to lead evidence and establish the debt. He lastly submitted that the ledger account were supported by the Bank statement of respondent Company as well as TDS Certificate and Income Tax returns of the appellant and, therefore the said ledger accounts was not disputed document and prayed that the impugned order be set aside and this appeal be allowed. 11. Per Contra, Shri Vishal Baheti, learned counsel for the respondent has submitted that the documents which are on record does not show that the amount is to be recovered from the respondent company. The necessary ingredients of Section 433 of the Act are not established in the present case and, therefore, the application for winding up be dismissed and prayed for dismissal of the appeal. 12. In various decisions of Supreme Court which has been discussed by the learned Company Judge in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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