2016 (12) TMI 366

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....usiness of manufacturing and repair of transformers, stabilizers etc. The respondent- Company placed an order on 17.11.2011 for one transformer capacity 215 KVA 11/0.433 which was allegedly supplied vide invoice No.000025 dated 30.11.2011 which includes BT 55 transformer oil 300 ltr. for a sum of Rs. 3,37,600/-. It is further alleged that the respondent- Company gave an advance of Rs. 50,000/- vide cheque No.025918 dated 30.11.2011 at the time of placing the order and another cheque No.025974 for a sum of Rs. 50,000/- was given at the time of delivery of transformer. It is stated that the respondent gave another cheque after a lapse of four months bearing No.117354 dated 18.4.2012 for a sum of Rs. 50,000/- and thus the total outstanding amo....

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....ce transformer has been delivered, invoice has been admitted by the respondent, the part payment is also admitted, the respondent is liable to pay the remaining amount which is an admitted debt for which the petitioner has a right in terms of the provisions of the Act. On the other hand, counsel for the respondent submits that the respondent is not admitting its liability to pay the remaining amount because the petitioner did not deliver the transformer despite receiving Rs. 2,20,000/- in advance for which the respondent shall take appropriate proceedings in accordance with law against the petitioner. He has also referred to a Division Bench judgment of this Court rendered in the case of Yadavindra Industries (Drinks and Agencies) Pvt. L....

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....tion 433 is statutorily defined in Section 434. The relevant clause for the present case is clause (a) of sub-section (1). In order to attract its applicability inter alia, it must be proved that the company is indebted to the particular creditor. It is well settled law that machinery for winding up will not be allowed to be utilised merely as a means for realising debts due from a company. In re: Bengal Flying Club (1986) 2 Comp. LJ 213. In Amalgamated Commercial Traders (Pvt.) Ltd. v. Krishna Swami (A.C.K.) (1965) 35 Com. Cases 456 (SC) the Supreme Court quoted with approval the following passage from Buckley on the Companies Acts, (13th Edn. p. 451): "It is well settled that a winding-up petition is not a legitimated means of se....