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2017 (8) TMI 252
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.....2012 to October, 2013 are referred to in para 8 of the petition. The said invoices are duly acknowledged by issuance of C Forms. The respondent has been making part payments for the goods received as per details given in para 10 of petition. The respondent had paid a sum of Rs.2,65,89,932/- against the total liability of Rs.2,93,57,829/-; thus leaving a balance of Rs.27,67,897/- as outstanding. The respondent also issued a cheque bearing No.615748 dated 15.03.2014 for Rs.24,29,728/- for part payment, but was dishonoured for reasons 'payment stopped by the drawer'. The payments later made were adjusted in the earlier invoices. The petitioner served the statutory notice dated 04.08.2016 claiming the balance of Rs.27,67,897/- with interest @ ....
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....897/- as alleged in the petition. A copy of the chart showing the details of the short supplies of materials made by the petitioner amounting to Rs.5,33,046/- is marked and enclosed herewith as Annexure R-2." 3. The respondent hence claim credit of Rs.20,33,046/- towards the short supplies made at its different sites and admitted only an amount of Rs. 7,34,851 as payable; hence alleges the claim being a disputed debt the petition is not maintainable. The respondent relies upon its email dated 15.06.2016 which notes as under:- "With reference to the subject, the panels supplied by you at CPMF has some short material. The details of the same have been attached with this mail. As you are already aware that work at this it ....
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....th October 2015. Hence there was no occasion for the respondent to issue debit notes on 31.03.2016 and that too for short supply. 6. Since the respondent has failed to put on record any correspondence during the period from 17.08.2012 till 31.07.2013 or within 15 months after 10.07.2013 qua any alleged short supply, the plea of respondent appears to be an afterthought. Sending of debit notes after two and a half year of supplies to stall just payments has no meaning at all. 7. Section 41 and section 42 of the Sales of Goods Act gives a right to purchaser to inspect the goods before accepting it and if he does not raise any objection qua its quality or of short supply within a reasonable time the seller shall be deemed to have accepted....
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....T 752 this Court held as under:- "19. It is well settled that a bogus or a sham dispute, contrived or concocted as a defence for a genuine and bona fide claim by a creditor, is not permitted to be utilised as a defence to a winding up action. It has been held above that there is no substantial defence to the petition. I have also found that a debt is prima facie due and payable by the respondent to the creditor. In this background, the binding principles laid down by the Apex Court in AIR 2005 SC 4175 Mediqup Systems Private Limited Vs. Promixa Medical System G.M.B.H. and (1994) 2 Comp. LJ 50 (SC) Pradeshiya Industrial & Investment Corporation of Uttar Pradesh Vs. North India Petro-Chemical Limited & Arn. relied upon by the respond....
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.... 632 held as under:- (i) 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. (ii) 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 quantity the debt precisely. (iii) The principles on 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....