2002 (11) TMI 662

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....ivities, the respondent-company claimed to have purchased certain yarn from the petitioner who is engaged in the business of manufacture of yarn needed for the manufacture of suiting/shirting, pursuant to contracts entered into between the parties on 18-4-1984 to 26-3-1985, valuing Rs. 6,11,715.65 paise. It is alleged by the petitioner that respondent was to make the payment against Hundies which they failed to retire. It is this action of the respondents which gave rise to serve a demand notice for paying a sum of Rs. 6,11,715.65 paise by the petitioner to respondent. It is complained that respondent failed to make the payment and hence, this company petition for winding up of the respondent-company on the ground of inability to pay the de....

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....h according to them do not even fall within the meaning of the word "debt". It is further alleged that they having raised a bona fide dispute in relation to one isolated commercial transaction, the remedy of the petitioner lies in filing suit rather than to seek winding up of a running company. 4. Heard Shri S.R. Kochatta, learned counsel for the petitioner. 5. Having heard the learned counsel for the parties and having perused the record of the case. I find no merit in the petition and hence, it deserves to be dismissed. 6. A petition for winding up is not a remedy which can be resorted to as of right. In other words, it is always regarded as a discretionary remedy. The Company Court is not bound to entertain the petition for winding up....

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....same having been disclosed in the return, this Court would not entertain the petition for winding up of a running company. Indeed, this is a fit case where this Court relying upon section 443(2) ibid decline to entertain the petition and leave the petitioner to recover his dues by resorting to any other remedy as he may have in law, rather than to pursue a winding up of a running company. This Court cannot convert the proceedings of winding up in the proceedings alike the civil suit to decide, whether respondent-company is liable to pay a sum of Rs. 6,11,715.65 and/or if so on what basis. Such issues are not required to be gone into in winding up proceedings but are necessarily required to be gone into in civil suits. Merely because the res....