TaxTMI 
TaxTMI 
2014 (4) TMI 1180
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....ase is whether the defence raised by the respondent is bona fide or a sham defence. ( 3. ) Briefly stated, the facts are as under:- 3.1. The petitioner is in business of manufacturing machinery for PVC pipe (Processing) Machinery and whereas the respondent is engaged in manufacturing and trading Aluminium sprinkler sets, HDPE pipe base, Sprinkler irrigation Systems, PVC pipe etc. 3.2. The respondent placed a purchase order for a Mixer Hopper Loader on 15.07.2011, for a sum of Rs. 2,44,800/-. The respondent also made a part payment of Rs. 24,480/- being 10% of the agreed purchase consideration. In terms of the purchase order the said equipment was to be delivered immediately and the purchase order also specified that the equipment would be installed by the engineers of the petitioner. 3.3. The petitioner sent an e-mail dated 08.08.2011, informing the respondent that the machine was ready for dispatch and called upon the respondent to pay the balance sum of Rs. 2,20,320/- as per the Performa Invoice. The petitioner also provided the details of its bank account to enable the respondent to directly remit the balance consideration through banking channels. The petitioner sent ano....
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....t filed a reply to the petition stating that there had been a delay of 4 months and 17 days in supply of the machines and the petitioner had failed to comply with the terms of the purchase order. The respondent further complained that even after the machines was supplied, the petitioner had failed to install the machines. ( 5. ) The learned counsel for the respondent states that respondent company is not liable to pay the amount claimed by the petitioner because the machines had been lying in idle condition since 02.12.2011 and is of no use to the respondent. The learned counsel for the respondent further contended that he is entitled to the refund of a sum of Rs. 24,480 (10% of the total amount) which was paid at the time of acceptance of order by the petitioner and other damages suffered. ( 6. ) I have heard the learned counsel for the parties at length. ( 7. ) It is well settled that in case of a substantial and bona fide dispute between the parties with respect to the debt claimed against a company, a winding up petition under Section 433(e) of the Act would not be maintainable. However, it is equally well settled that in a case where a company creates an illusory or speciou....
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....not sustainable. First of all, the purchase order recorded that 10% of the purchase consideration had to be paid in advance, which was not done at the time of placing the purchase order (i.e. on 15.07.2011). Admittedly, this payment was made by a cheque dated 20.07.2011. Secondly, the petitioner had by an e-mail dated 08.08.2011 informed the respondent that the machine was ready for purchase and called upon the respondent to pay the balance consideration. Apparently, the respondent failed to do so. The petitioner had once again called upon the respondent, by an e-mail dated 03.10.2011, to pay the balance amount in order that the machine could be dispatched. It is thus apparent that there was no delay on the part of the petitioner in supplying the machine to the respondent. In any event, the controversy whether there was any delay in delivery of the machine in question is a non issue as, admittedly, the machine was finally dispatched on 01.12.2011 and there is no dispute that the said machine was received by the respondent without any protest or any reservation. In the circumstances, the contention that the respondent was not liable to pay the payment on account of delay in supply o....
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....y states that the petitioner had been pursuing with the respondent for the cheque to be replaced. The respondent had responded to this letter by a letter dated 02.03.2012, however, this statement of the petitioner was not controverted. It is also obvious that in the normal course of events, a recipient of a cheque that has been misplaced would call upon the drawer to replace the same. The contention that the cheque given by the respondent was dishonoured on 03.12.2011, yet the petitioner had not requested for its replacement till 16.02.2012, is not credible. ( 11. ) The respondent has further relied upon the letters dated 12.09.2011, 11.11.2011 and 22.12.2011 to contend that the respondent had been pursuing the petitioner for delivery of the machines. However, the petitioner had inordinately delayed the same. First of all, the letters have been disputed by the petitioner; secondly, it is also relevant to note that the said letters have no reference to the e-mails sent by the petitioner (which are not disputed); thirdly, the said letters have been sent under certificate of posting while the other correspondence by the respondent has been by registered post. In my view, the said let....