TaxTMI 
TaxTMI 
2014 (3) TMI 206
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....some engineering items upon the Appellant; (b) The Appellant thereupon supplied the items and from time to time raised invoices aggregating to Rs. 2,16,64,437/-upon the Respondent company; (c) The Respondent company made payments to the extent of Rs. 1,31,44,778/- upto July 2009; on 29 July 2009, the Respondent company executed a writing acknowledging and undertaking to pay the balance amount of Rs. 81,94,426/- then due and payable to the Appellant. The undertaking provided for a payment schedule within which the Respondent company agreed and undertook to make payments to the Appellant; (d) As there was no compliance, the Appellant by Lawyer's notices dated 6 July 2010 and 12 October 2010, called upon the Respondent company to pay the amount of Rs.85,40,220/-as undertaken by the Respondent company; (e) Despite receipt of the notices, the Respondent Company neither furnished any response, nor paid the amounts as demanded; (f) On 20 April 2011, the Respondent company addressed an E-mail promising to pay Rs. 25 Lakhs and expressing difficulties in....
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....to receipt of corresponding payments from HAL. As such the debt was not yet due and the petition as filed was premature. (iii) The Appellant has failed to establish that the Respondent company has "deliberately and intentionally" neglected to pay the amount due. Merely because, in the present case, the amount is due and payable and/or though acknowledged is not paid, that by itself is not a sufficient ground to wind up the Respondent company. 6. Mr. Pankaj Vijayan, learned Counsel appearing for the Appellant questioned the impugned judgment and order on the ground that the learned Company Judge had failed to apply the correct principles in determining whether the case had been made out for winding up of the Respondent company. In this regard, Mr. Vijayan made the following submissions: (i) The undertaking dated 29 July 2009, not only clearly and unambiguously records acknowledgment of debt, but further records a promise on the part of the Respondent company to pay an amount of Rs. 81,84,426/- stated therein as per the schedule of installments. The undertaking records that in case of default, the Appellant shall be entitled ....
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....ondon and Paris Banking Corporations [1874] LR 19 Eq 444.Again a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been properly done was not allowed. See Re. Brighton Club and Horfold Hotel Co. Ltd. [1865] 35 Beav 204. 21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt, See Re. A Co. 94 SJ 369.Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the 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." 9. Applying aforesaid principles to the facts and circumstances of the presen....
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.... in fact carried out and that upon such reconciliation any amount was found as not due and payable to the Appellant. (v) Much after the execution of the undertaking dated 29 July 2009, the Respondent company has made endorsements upon the balance confirmation letters dated 25 March 2010 and 7 March 2011 confirming that the Appellant is to receive from the Respondent company an amount of Rs.85,41,219.80 as on 28 February 2010 and 28 February 2011. 12. Mr. Kulkarni, then contended that as per the agreement between the parties, payments were to be effected by the Respondent company within 3 to 5 working days on receipt of payment from Hindustan Aeronautical Limited (HAL) on a back to back basis. In this regard, Mr. Kulkarni referred to Clause 5.2 of the purchase order dated 17 July 2009, which reads as follows: "5.2 Tooltech shall release to TAML all payments due to them (and provide all Reasonable documentation as proof, if required), within 3 to 5 working days on receipt of their (Tooltech's) payment from HAL on a back to back basis. However, Tooltech would do the best possible to release the payment within 45 days from the ....