TaxTMI 
TaxTMI 
2017 (7) TMI 579
X X X X Extracts X X X X
X X X X Extracts X X X X
...., learned counsel appearing for the Appellant very ably submits that the material on record was more than sufficient to establish that the Company is due and payable to the Appellant (Petitioning Creditor) a sum of approximately Rs. 3.92 Crores, towards the purchase of 11,637.203 MT of Yellow Peas. Mr. Jayasimha submits that there is acknowledgement that the cargo was duly supplied in a good condition and the outstanding balance towards such supply is approximately Rs. 3.92 Crores. Mr. Jayasimha submits that the Company has raised false and frivolous defences, including, some defence by involving a third party. Mr. Jayasimha submits that such defences are really in the nature of "moonshine" and therefore, following the dictum of the Hon'....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 13th March 2014. Ms Sardesai submits that therefore, it was the duty of the Appellant to have disclosed such factum in the petition seeking winding up of the Company. She submits that this is a case of suppression of relevant and vital documents and therefore, an order of winding up, which is, even otherwise a discretionary order was rightly denied to the Appellant. Ms Sardesai points out that the Appellant has already instituted a suit to recover the amounts allegedly claimed as due from the Company. She points out that there is no material on record to establish that the Company is commercially insolvent or otherwise unable to pay its admitted dues. On these grounds, Ms Sardesai submits that the present Appeal may be dismissed. 6. Rival....
X X X X Extracts X X X X
X X X X Extracts X X X X
....[1965] 35 Comp. Cas. 456, the Hon'ble Supreme Court has quoted with approval passage from Buckley on the Companies Acts (13th Edition, Page 451) to the effect that a winding up petition is not a legitimate means for seeking to enforce payment of debt which is bona fide disputed by the Company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuse of the process of the Court. At one time petitions founded on disputed debt were directed to stand over till the debt was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Single Judge refusing to admit the petition for winding up of the Company. 11. In the first place, there is no dispute that debit note, recording a debit of Rs. 3,52,50,000/- was in fact received by the Appellant along with emails dated 11th March 2014 and 13th March 2014. In paragraph 12 of the impugned order, the learned Single Judge has in fact recorded the statement made by the learned counsel appearing for the Appellant that such debit note was indeed received by the Appellant. There was however, no disclosure as regards such debit note in the petition seeking winding up of the Company. The learned Single Judge has rightly held that the explanations in the affidavit in rejoinder belatedly made, inspire no much confidence and the expla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for winding up of the Company. 14. Apart from the two decisions referred to earlier, Mr. Jayasimha, learned counsel for the Appellant has also relied upon the decisions in Pipe Distributors v. Commercial Tax Officer 2008 (1) KLT 303, Paharpur 3P v. Dalmia Consumer Care (P.) Ltd. [2008] 88 SCL 298, Nepa Ltd. v. Jnanamandal Ltd. [1999] 21 SCL 53 (All.) and National Small Industries Corpn. Ltd. v. Bassein Metals (P.) Ltd. [2008] 143 Comp. Cas. 194 (Bom.) in support of the Appeal. All these decisions, besides turning on their own facts, reiterate the principle in Madhusudan Gordhandas (supra). Applying the said principles, there is really no case made out to interfere with the impugned order. As held by the learned Single Judge, this cannot be....