TaxTMI 
TaxTMI 
2005 (3) TMI 467
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....ma Medical System, GmbH, issued legal notice to the appellant-company under section 434 of the Companies Act mentioning that the appellant-Company is liable to pay the respondent a sum of US $ 5,000 and US $ 11,000 aggregating to US $ 16,000. The appellant replied to the said notice and denied the liability to pay the amounts to the respondent. The respondent-company filed a winding up petition being C.P. No. 316 of 2001 against the appellant-company, inter alia, praying that the Company be wound up by the order of the Court and Official Liquidator of the Court be appointed as Liquidator of the Company to take charge of its assets. It was alleged therein that despite notice, the Company failed and/or neglected to refund US $ 5,000 and US $ 11,000 which was allegedly remitted by the respondent-company as partial bid security in respect of two global tenders. The appellant filed affidavit in opposition to the winding up petition contending that the said amounts were not payable to the respondent-company and the appellant disputed its liability. The following documents were relied in support of the aforesaid contentions: (i)Intimation note issued by Vijaya Bank being FTTI/NSC/73/99....
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....ourned motion four weeks from date. Affidavits were required to be filed in the meantime. It was further directed that the stay granted earlier would continue for a period of three months or till further order. On 11-8-2003, the Division Bench of the High Court passed the impugned order dismissing the stay application as well as the appeal preferred by the appellant. Aggrieved by the said order, the appellant preferred this appeal by way of special leave. 6. We heard Mr. Dhruv Mehta, learned counsel appearing for the appellant and Mr. Braj Kishore Mishra, learned counsel appearing for the respondent. 7. Mr. Dhruv Mehta, learned counsel appearing for the appellant made the following submissions: (a)The Division Bench passed the order without due consideration of the documents on record showing that the remitter of US $ 11,000 was not the petitioning creditor but altogether a different company. (b)The order passed by the Division Bench failed to appreciate that no debt is due and payable by the appellant-company to the petitioning creditor as they are not the remitter of the subject sum of US $ 11,000 and as such the winding up proceedings is not maintainable by the said ....
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.... Registrar of the High Court. The appellant had admittedly, not done so even though the liability was admitted by the appellant and, therefore, the consequences mentioned in the order of the Company Court would automatically follow. 11. It was further submitted that as per the direction of the Company Court, the suit was to be filed by the respondent only after the deposit of the amount of US $ 11,000 by the appellant. The appellant never deposited the said amount of US $ 11,000 but instead obtained a stay of the order of the Company Court. In these facts and circumstances, the respondent-petitioning creditor could not have had filed a suit for recovery of US $ 11,000. 12. Concluding his arguments, learned counsel appearing for the respondent, submitted that the appellant has denied its liability which it had earlier admitted in no uncertain terms and, therefore, this appeal is liable to be dismissed. 13. In this background of the facts, the following questions of law would arise for consideration of this Court : (i)Whether the Division Bench of the High Court at Calcutta justified in dismissing the appellant's appeal summarily holding, inter alia, that the appellant wa....
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....n either side. It is a matter of fact that the appellant-company had duly deposited Rs. 2 lakhs in compliance of the direction given by another Division Bench of the High Court on 28-10-2002 when the interim stay of the advertisement was granted and the said sum of Rs. 2 lakhs is now in the custody of the Registrar, Original side of the High Court at Calcutta. 15. In our opinion, the High Court has failed to appreciate that there is a bona fide dispute concerning US $ 11,000. While the learned Single Judge has held that the dispute concerning US $ 5000 is a bona fide dispute, he has erred in not holding that the dispute concerning US $ 11,000 also is bona fide. The High Court, on the one hand, has held that the Company has admitted in no uncertain terms that US $ 11,000 should be repatriated to the remitter on the other hand, the learned judge failed to appreciate that the petitioning creditor in the instant case was not the remitter and was not entitled to the said sum of US $ 11,000. It is not in dispute and as admitted by the respondent-petitioning creditor that the remitter of the sum of US $ 11,000 was one M/s. Pameda Medizinische Systems and not the petitioning creditor an....
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....ant is not a debtor insofar as US $ 11,000 is concerned. The defence raised by the appellant is a substantial one and not mere moonshine which is to be finally adjudicated upon on merits before the appropriate Forum. Section 433 of the Companies Act says, "A company may be wound-up by the Court- (a)to (d)****** (e)if the company is unable to pay its debts;" From the above it follows: (1) There must be a debt; and (2) The company must be unable to pay the same. An order under clause (e) is discretionary. The debt under section 433 of the Companies Act must be a determined or a definite sum of money payable immediately or at a future date. We are informed that the financial position of the appellant is sound. 20. This apart, both, the learned Single Judge and the Judges of the Division Bench have granted interim relief which can be granted only in aid of, and as ancillary to the main relief which may be available to the party on final determination of its rights in a suit or proceedings. 21. The Bombay High Court has laid down the following principles in Softsule (P.) Ltd., In re [1977] 47 Comp. Cas. 438 : "[Firstly,] It is well settled that a wind....