2006 (8) TMI 318

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...., 1956 ('the Act'), demanding due payment towards principal amount with interest but the respondent-company failed to make payment within statutory period, as a result of which the petitioner-firm was led to file instant company petition for winding-up under section 459 read with section 433(e) of the Act. 3. The respondent-company has raised various contentions against the winding-up petition, which are highlighted herein below:- (i)The petition is not maintainable since the issue in dispute is of a contractual and civil nature which can be resolved by institution of civil suit. (ii)The petition is firstly misconceived and is filed with oblique motive to pressurize the respondent-company to make the payment of the amount as allege....

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.... been filed. 4. The petitioner-firm filed rejoinder to the reply reiterating the facts stated in winding-up petition. 5. I have given anxious consideration to the rival submissions. 6. In Mediquip Systems (P.) Ltd. v. Proxima Medical System GMBH [2005] 7 SCC 42, the Apex Court indicated as under : "18. This Court in a catena of decisions has held that an order under section 433(e) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression "unable to pay its debts" in section 433(e) of the Companies Act should be ....

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....he exact amount of the debt is disputed the court will make a winding-up order without requiring the creditor to quantify the debt precisely see Re. Tweeds Garages Ltd. [1962 Ch. 406]. The principles which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends." (p. 638) 8. The principles on which court should act in disposing winding-up petition may be deduced thus :- (i)If the debt is not disputed on some substantial ground the court may make the order. (ii)If the debt is bona fide disputed, there cannot be "neglect to pay" within the meanin....