TMI Blog2019 (5) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... . What is left, is a small amount as compared to the original purchase orders. That apart, the communication dated 11.11.2012 clearly shows that the respondent had accepted its liability to pay to the petitioner - also there was no response to the legal notice dated 26.05.2014 sent by the petitioner. The defence set up by respondent is not a bonafide defence. The application is admitted - The Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith - Petitioner shall deposit a sum of ₹ 75,000/- towards cost of the publication with the Official Liquidator within 2 weeks, subject to any furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the plea that the goods supplied by the petitioner were defective. It is claimed that the petitioner failed to supply material as per the specification of the material. It has also been pleaded that in case there is any dispute between the parties, the purchase orders had an arbitration clause and the petitioner as an alternative remedy, has not chosen the same. 4. I have heard the learned counsel for the parties. 5. It is a matter of fact that the respondent sent an e-mail on 21.09.2012 to the petitioner stating that the PUF panels supplied by the petitioner were sent to different laboratories for testing. It is pointed out that the results indicate that the Ultimate Tensile Strength (UTS) and Yield Stress (YS) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt remains due and payable by the respondent. 10. The argument of the learned counsel for the respondent is that because an arbitration clause exists in the agreement, the parties should go for arbitration is a misplaced argument. The petitioner, if the facts so warrant can approach this court for winding up of the respondent company. Merely because an arbitration clause exists, does not mean that the parties cannot approach the court under Sections 433, 434 and 439 of the Companies Act. The Supreme Court in Booz Allen Hamilton INC v. SBI Homes Finance Ors., (2011) 5 SCC 532 has held that petitions for winding up are non-arbitral. Relevant para of the said judgment reads as follows: 36. The well-recognised exampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is 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 fid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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