TMI Blog2016 (2) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... , without disclosing all the material facts to the court. This Petition is an ideal example of how an order of admission was obtained without mentioning the relevant facts. Petition dismissed. - COMPANY PETITION NO. 328 OF 2011 - - - Dated:- 2-2-2016 - K.R. SHRIRAM, J. Mr. S.C. Naidu a/w. Mr. Aniketh Poojari i/b. A. A. Patil for the Petitioner. Mr. B.B. Saraf with Ms. Pooja Kshirsagar i/b. Mr. Pramod N. Patil with Mr. Ajit D. Hon for the Respondent. ORDER P.C. 1 The petitioner is seeking winding up of the respondent-company. 2 According to the petitioner, in pursuance of two purchase orders by the respondent-company, the petitioner, between 26.11.2009 and 12.01.2010, supplied and delivered to the Company DPC paper covered copper conductor (the goods). Copies of the purchase orders are annexed to the Petition. According to the petitioner, as mentioned in paragraph 8 of the Petition, the Company accepted the goods without any demur as to quality and quantity thereof and confirmed that the goods were to its satisfaction. The petitioner states that the company has not paid an outstanding amount of ₹ 1,26,79,064/- which includes interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. In the affidavit-in-reply the defence taken in addition to what is mentioned in paragraph 3 above is that the material supplied were defective, not as per specification, delayed and short supplied. It is also stated that in view thereof the Company had to encounter problems with its purchasers who have made substantial claims against the Company. The Company has also annexed copies of contemporaneous correspondence to show that they had raised objections and pointed out the defects in the supply, immediately after the materials were received. As regards the cheques, the documents annexed to the Petition show that the cheques were given only as a security with blanks and the petitioner was not supposed to deposit those cheques without clearance from the Company. 5 On the deficiencies in the supply made, copies of correspondence exchanged in this regard are at Exh.F to the affidavit-in-reply. These correspondence start from 30.11.2009 and go on till 16.01.2010. It should be noted that the supply to the Company from the petitioner began on 26.11.2009 and went on till 12.01.2010. These are therefore, triable issues. 6 The Apex Court in IBA Health (India) Pvt. Ltd. v. Info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicated upon on the merits before the appropriate forum. The above mentioned judgments were later followed by this Court in Vijay Industries v. NATL Technologies Ltd. (2009) 3 SCC 527. 23. The principles laid down in the above mentioned cases indicate that if the debt is bona fide disputed, there cannot be neglect to pay within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated and non-payment of the amount of such a bona fide disputed debt cannot be termed as neglect to pay so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. 24 .... 25 .... 26 .... 27 .... 28 .... 29 .... 30 .... 31. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. Bona fide dispute implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that their huge payment has been blocked and as soon as released they would immediately released the due of the petitioner but after the great efforts director of company agreed to finalized the account of the petitioner and after finalizing the account as per the terms of purchased orders invoices and against that the respondent company handed over/issued some cheques with the promised and assurance that same would be honoured upon presentation as part payment and had also promised that for balance would give another cheques after clearing of said cheques. 12. The petitioner state that as per the promise of the respondent company the petitioner deposited said cheques with their bank for realization. However, the same were returned disnatured with the remark STOP PAYMENT BY DRAWER . .... 11 Against this Exh.I-1 and I-2 annexed to the affidavit-in-reply, read as under : Date : 14th Nov 2009 To M/s. R S Wire Industries H-4/ Cama Industrial Estate Near Mehat House Goregaon (E) MUMBAI : 400 063 Dear Sir, We are enclosing herewith the Cheques as follows as per our Purchase Order for M/s. R S Wire Industries and M/s. K Coppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a manner not to mislead the Court as to the true facts. In Agarwal Industries Ltd. v. Golden Oil industries (P.) Ltd. reported in 2001 Company cases (Vol. 106 page 78), this Court has summarized how to deal with dishonest litigant : ... The passages quoted above leave no manner of doubt that a dishonest litigant loses his remedy, when discretionary relief is obtained by misrepresentation. The affidavit in support must make a candid and fair statement of facts. The facts must not be stated in a manner to mislead the court as to the true facts. There must be no concealment of material facts. It is no excuse for the party to say that he/she was not aware of the importance of any facts which he/she has omitted to bring forward. ... 13 Inspite of the Courts repeatedly stating and reaffirming the principle that it is the duty of a party to bring to the notice of the Court all facts material and relevant to the issue, litigants continue in their efforts to obtain favourable orders from the court, even exparte, without disclosing all the material facts to the court. This Petition is an ideal example of how an order of admission was obtained without mentioning the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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