TaxTMI 
TaxTMI 
2009 (4) TMI 449
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....he respondent-company to the petitioner in a sum of Rs. 1,12,51,871 for various goods sold and services rendered by the petitioner to the respondent-company under an Infrastructure Supply and Services Agreement dated 7-1-2002 ('the agreement'). The agreement came to be executed for implementing the respondent-company's GSM project at BSNL and non-BSNL sites in the States of Andhra Pradesh/Kerala. II. The petitioner's claims 3. The averments in the petition are that the petitioner had to complete the work entrusted to it by the respondent under the terms of the aforesaid agreement by 27-7-2002. The agreement spells out the terms of payment and the admitted case is that all the payments have been made except 20 per cent of the price of ....
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....ioner by reference to the fact that under Clause 4.3-4 of the Agreement, the final payment of 20 per cent would be become payable only when the respondent itself received the last payment from BSNL. The respondent has stated on oath in its reply through its Director that the last payment had not been received from BSNL and also filed additional affidavit dated 19-3-2009 at the time of argument to state that the respondent had not received approximately 16.25 per cent of the purchase order value placed by BSNL on the respondent. It is the contention of the respondent that two arbitration cases are still pending between the respondent and BSNL and under such circumstances, the debt has not become due and payable to the petitioner. 5. The l....
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....s in compliance of the Best Accounting Practices and that the said amount has been subject to the contingency of the receipt of last payment from BSNL. IV. Other contentions, as found in pleadings 6. Apart from this argument, it is contained in the petition and the statement filed by the respondent-company that the petitioner stakes its claim also on the basis of inchoate contract that the services which it had rendered was not meant to be gratuitous and, therefore, the petitioner was also entitled to make the claim for value of the services had and received by the respondent-company. The respondent would answer this contention in its counter by stating that the section 70 of the Contract Act itself could be invoked only in the absenc....
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....04 Edition defines the term 'payable' as having two meanings: (1) owing and (2) payable at a particular point of time, and when this expression is used without any qualification it generally means payable at once. This assumes importance only because a petition for winding up under the Companies Act could be invoked only for an amount that is ascertained and owed by the company. That is why there is a statutory requirement of having to issue a notice. In case where a creditor complains that the company is unable to pay its debts and as such the presumption is available under section 434(1)(a) if the company is indebted in a sum exceeding one lakh rupees and company is unable to pay for three weeks after the demand is made. The "sum due" as ....
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.... VI. Future liability or contingent liability is not a "debt" 10. The services rendered by the petitioner-company itself is not in doubt. Although objection to the exact amount is made by the respondent by reference to certain aspects such as delay in completion of the work, non-furnishing of proofs of tax returns of the petitioner-company, they would fall to way side, if we address the core issue as to the nature of liability, especially having regard to the provision being made by the respondent-company in its balance sheet admitting the liability though not to the entire sum as claimed in the notice but to substantial amount thereof. The liability springs from a clause which both parties have referred to under Clause 4.3-4 which rea....
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....nti and dismissed the petition. The similar statement of law was also made in a decision of this Court in Registrar of Companies v. Ajanta Lucky Scheme & Investment Co. (P.) Ltd. [1973] 43 Comp. Cas. 314. This Court had held that the term 'debt' really meant an amount which was due and could be claimed by creditor, so that if the demand was not met, the company could be said to be unable to pay its debts. But if a debt had not accrued due and no demand could be made and the mere fact that certain liabilities would accrue due in future, it would not unnecessarily lead to the conclusion that the company was unable to meet its liability even in instances where the future liabilities could be more than the value of the present assets of the com....