9911796707
TMI Blog2011 (1) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... d in his favour. 2. Mr. Prabhjit Jauhar, learned counsel for the petitioner has vehemently opposed the request for adjournment. 3. Upon perusal of the order sheets, I find that in a short span of about a year and a half, respondent has already changed its counsel. Mr. Thomas P. Kuruvilla, is the third counsel to enter appearance on behalf of the respondent. 4. I am of the view that the respondent is repeatedly changing its counsel to get further time from this Court as it knows fully well that the dockets of this Court are clogged and no short adjournment can be granted. I may mention that this Court on 15th February, 2010, had observed after hearing the matter at some length that prima facie there does not appear to be any serious defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May, 2008, the final bill was certified by Project Management Consultant of the respondent company for a sum of Rs. 22,63,173.70/-. The said certificate is at page 47 of the paper book. 9. On 11th April, 2008, a final bill certification meeting was held amongst petitioner, respondent as well as the respondent's Project Management Consultant. The relevant portion of the minutes of the said meeting read as under:- "C & W presented the final bill for Fit-out of SPA Office to M/s SPA Lifestyle. xxx xxx xxx - M/s SPA Lifestyle accepted the bill and the amount stating that they have faith in the final worked out quantities and amount. SPA assured that this amount would be treated as final. The final amount of the bill is Rs. 74,87,706/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent and it would have the same character as if the said bill had been signed by both the parties namely, the petitioner and the respondent. In reaching this conclusion, I am fortified by a judgment of this Court in Pact India vs. Sanjiv Bhasin, (2001) 5AD (Delhi) 667 wherein it has been held as under:- "9. As already mentioned, the defendant himself agrees that once the bill is certified by the Architect amount there under becomes payable. Final bill, which is a written document, prepared by the plaintiff on being certified by the Architect i.e. the agent of the defendant will have the character as if the said bill is signed by both the parties, namely by plaintiff and by the defendant though his authorised agent, the Architect and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be kept in perspective: "12. In winding up proceedings it is necessary to keep the following principles in perspective-- (i) If there is a bona fide dispute and the defence is a substantial one, the court will not wind-up the company; (ii) Where the debt is undisputed the Court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay it; (iii) Where the defence of the company is in good faith and one of substance, and the defence is likely to succeed in point of law, and the company adduces prima facie proof of the facts on which the defence depends, the petition should be rejected; (iv) The Court may consider the wishes of creditors so long as these appear to be justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it been exercising ordinary original civil jurisdiction it would have granted unconditional leave to defend, it must dismiss the winding up petition." (emphasis supplied) 16. Keeping in view the aforesaid facts, I am of the view that in the present case, the debt mentioned by the petitioner in its legal notice is an admitted debt and the defence adopted by the respondent in the reply to its legal notice as well as in its reply affidavit is a moonshine. 17. However, keeping in view the fact that the respondent company is a running company, I grant four weeks' time to the respondent to deposit a sum of Rs. 22,63,174/- with the Registry of this Court. In case, the aforesaid amount is not deposited within the stipulated period, the Offici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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