TaxTMI 
TaxTMI 
2008 (7) TMI 577
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.... direction as the Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. Upon failure to repay the amount of dues outstanding, the petitioner gave a statutory notice to the respondent company under section 434 of the Companies Act, 1956 (for short 'the Act') demanding the dues with interest but the respondent company failed to make payment within statutory period, as a result of which the petitioner was led to file instant company petition for winding up under sections 433, 434 and 439 of the Act. 3. It is averred in the petition that the respondent company is a private limited company incorporated under the provisions of the Act having its office at B-13, Industrial Estate, 22 Godown, Jaipur. The respondent....
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....himself was the Director of the company till 28-6-2007, when he ceased to be a director on not attending board's meetings by virtues of section 283(1)(g) of the Act. Information in this regard was sent to petitioner vide letter dated 21-7-2007. (ii )Although the company is registered as a private limited company, in fact, it is a partnership concern in which the petitioner was director till 28-6-2007, beside his father Bajrang Lal Bajaj, mother Smt. Gita Devi, brother Ashok Bajaj and brother's wife Smt. Anupama Bajaj. Two directors joined on 10-8-2006 and further two directors joined on 11-9-2006, thus four directors are from the Bajaj family itself. (iii)All the shareholders of the company belong to the families of the petitioner and his....
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....self is responsible for putting the company to suffer loss. (xii)The obvious collateral purpose of winding up petition is to damage the respondent-company and economically coerce it into subjugation which is sufficient for the court to throw out the winding up petition on this ground alone. (xiii)The petition is filed with oblique motive to pressurize the respondent-company to make the payment of the amount as alleged to be due, while the petitioner and his wife also are shareholders of the respondent-company. (xiv)The dispute involved is a bona fide dispute between the parties and winding up petition is not a legitimate means of seeking to enforce payment of the alleged amount, which is a bona fide dispute." 5. The petitioner filed rej....
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....urt the petitioner would be compelled to approach the Hon'ble Court for enforcement of the decree. (v)Learned counsel for the petitioner placed reliance on Abnah Kaur v. Lord Krishna Sugar Mills [ILR 1972 Delhi 413], Rishi Enterprises [1991] 2 GLR 1213 and P.K. Varghese v. JTV Metal Finishers (P.) Ltd. (Vol .63 Comp. Cas. 644)." 6. I have given anxious consideration to the rival submissions. It is well-settled that provisions of section 433 of the Act could not be invoked to coerce a company to make payment of loan. In P.K. Varghese v. J.T.V. Metal Finishers (P.) Ltd. [1988] 63 Comp. Cas. 644 the Karnataka High Court held that section 433 of the Act could not be made use of to coerce a company to make payments, not immediately due, even t....
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....ed to be utilised merely as a means for realising debts due from a company." (p. 49) 8. In Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. [1971] 3 SCC 632, their Lordships of the Supreme Court had occasion to consider the circumstances under which the court is justified in ordering winding up of the company. It was indicated in paras 20 and 21 thus :- "20. Two rules are well-settled. First, if the debt is bona fide disputed and the defence is a substantial one, the Court will not wind up the company. The court had dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreason....