TMI Blog2018 (12) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, no clear finding can be drawn that the debt is due and payable to the petitioner. It is settled legal position that it is not the function of the company court to enter into an adjudication of disputed facts which should have been the subject matter of the Civil Suit. Respondent has raised disputes that are bona fide. Clearly, the contentions which are now being raised by the petitioner are the issues which ought to have raised before the Civil Court. There is no merit in the present petition. Needless to add that any observations made herein will not in any manner prejudice the rights of the parties. It would be for the petitioner to approach the appropriate civil court for adjudication of its claim for any period spent whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledger account of the petitioner. It has further been stated that the alleged debt on which the petitioner is seeking winding up of the respondent company pertains to two invoices being Ex. 564 and Ex.573 dated 04.03.2011 and 09.03.2011 respectively which were in respect of defective goods which were returned to the petitioner. It is stated that the goods so supplied by the said invoices were defective as not being of the approved quality and the petitioner has taken no steps to replace the said defective goods. It has been stressed that there is no admitted debt or liability. 4. I have heard learned counsel for the parties. 5. Learned counsel for the petitioner has relied on the running ledger account of the petitioner to state that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner has supplied material for five years on running account basis. 7. That apart, basically the petitioner is claiming that under the books of accounts certain amounts remain due and payable to the petitioner. In terms of section 34 of the Evidence Act it would be for the petitioner to establish the debt by proving the books of accounts. While dealing with section 34 of the Evidence Act the Supreme Court in Ishwar Dass Jain (dead) Thr.LRs vs. Sohan Lal (Dead) By Lrs., AIR 2000 SC 426 has held as follows:- 24. Now under Section 34 of the Evidence Act, entries in account books regularly kept in the course of business are admissible though they by themselves cannot create any liability. Section 34 reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through the Form VAT 07A which is filed by the respondent Company for the period 01.04.2011 to 30.06.2011 which shows that an amount of ₹ 4,78,944/- has been paid by the petitioner-Shankar Steel Supplier. For the same period, the same figure of ₹ 4,78,944/- is shown in the VAT returns of the petitioner. 10. In my opinion, this pertains to a very small period of three months. It is not for this Court to sit and serve through the evidence and record a finding of fact as to whether the amount is due and payable. The books of accounts/ running account of the petitioner would have to be proved to show that the said amounts are due and payable to the petitioner. It is also a matter of fact that the two invoices being Ex.564 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 13. The respondent has raised disputes that are bona fide. Clearly, the contentions which are now being raised by the petitioner are the issues which ought to have raised before the Civil Court. There is no merit in the present petition. Needless to add that any observations made herein will not in any manner prejudice the rights of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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