TaxTMI 
TaxTMI 
2008 (9) TMI 566
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....titioner. A further sum of Rs. 6,61,100 was also claimed as being recoverable towards 'C' form liabilities. The petitioner made the claim on the basis of invoices available at page Nos. 12 to 46 of the Company Petition. According to the petitioner, on 3-3-2004 the petitioner had confirmed the accounts and hence there was no question of any dispute on this count. 3. It was further submitted on behalf of the petitioner that despite statutory notice the respondent company had failed to make payment within the prescribed period of 21 days, and in fact there was no reply even to the statutory notice. Placing reliance on provisions of section 433 read with section 434(1)(a) of the Companies Act, 1956 ('the Act') the petitioner prayed for admission of the petition and ultimately an order for winding up of the respondent company. 4. On behalf of the respondent company the petition was disputed firstly on the ground that the petition was not maintainable, the statutory notice having been issued to one Geeta Prints Private Limited while the petition was filed against Geeta Prints Limited, a Public Company. That debts of the private company could not be claimed against the public compan....
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.... in economic death of the company. It was submitted that the statutory presumption which is available under section 434(1)(a) of the Act was a rebuttable presumption and once the respondent company had raised various disputes, pointed out financial soundness of the company, the Company Court ought to have come to the conclusion that the presumption was rebutted and in exercise of discretion vested in the Company Court ought not to have entertained the petition. It was therefore submitted that merely because statutory notice was not replied by the respondent company, the petition could not be entertained without anything more. For establishing that the company was a going concern various averments made in affidavit-in-reply and further affidavit-in-reply were referred to and read extensively. It was therefore urged that the petition was required to be allowed and impugned order dated 11-12-2006 was required to be quashed and set aside. 7. On behalf of the original petitioner - respondent herein, it was pointed out that the contention regarding status of the company having undergone change was a dishonest defence considering the provisions of section 43A(1A) of the Act because the....
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....n AIR 1966 SC 1707 (now G.V. Dalvi) Court Receiver. (2) Enernorth Industries Inc. v. VBC Ferro Alloys Ltd. [2006] 133 Comp. Cas. 130 (AP) wherein the Apex Court decision in case of Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 has been extracted at page Nos. 143 and 144 of the said reports. Inviting attention to averments made in paragraph Nos. 13, 15 and 16 of the petition it was submitted that even the requirement prescribed by Rules and statutory form stood complied with. The learned Advocate therefore submitted that no interference was warranted in the impugned order made by the Company Court and the appeal was required to be dismissed. Lastly it was submitted that before the Division Bench could take up the appeal and stay application against the operation of the impugned order, advertisement had already been published as directed by the Company Court. 8. The facts are not in dispute. When the petitioner issued notice calling upon the respondent company to make payment, admittedly, the respondent company did not reply to the statutory notice. That gave rise to statutory presumption that respondent company was unable to pay its....
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....hat the company is in a sound financial position and is in a position to discharge its existing liabilities. Merely from the figures of turnover, various expenses incurred by the company, the amount of income-tax refund received by the company, it is not possible to ascertain the financial health of the company in absence of any corroborative evidence in this regard. The submission that the same is not disputed cannot be considered for the simple reason that the financial soundness of the company has to be considered by the Court while exercising discretion and when the company makes a positive averment it is the respondent company who has to establish such averment. Factually also, paragraph No. 11 of the affidavit-in-rejoinder categorically calls upon the respondent company to prove the averments made in paragraph Nos. 5 to 9 of the affidavit-in-reply originally filed, despite which except the further affidavit no evidence has come on record. 11. The factum of so called dispute as pleaded by the respondent company also does not merit acceptance because as can be seen from communication dated 24-5-2004, the subject-matter pertained to reconciliation of accounts and the first se....