2018 (3) TMI 717

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....for shifting of factory assets and machinery as per letter dated 12.10.2013. On confirmation of the rates, the petitioner company is said to have shifted 950 tons of the machinery @ 1900/- per ton and another 950 tons on supervision charges @ 250/- per ton amounting to Rs. 22,94,953/- after service tax. It is stated that on 16.12.2013, the petitioner raised an invoice for Rs. 22,94,953/- on the respondent which included an advance of Rs. 2 lakhs. It is also pleaded that on 27.02.2014, the respondent has admitted its liability. Admittedly, a sum of Rs. 15,52,427/- has already been paid to the petitioner. The case of the petitioner is that a balance sum of Rs. 7,42,516/- is still due and payable. Reliance is placed on a balance confirmation l....

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....um of Rs. 15,75,062/-. He submits that this is the invoice that has been received by the respondent and payment has been made for the same. He also relies upon e-mails sent by the petitioner on 29.11.2012 and 04.12.2013. 7. A perusal of the two invoices relied upon respectively by the learned counsel for the parties would show that both the invoices are dated 16.12.2013 and they bear the same number, namely, 02 and both also have the same book number i.e. book No. 01. The copies of the invoice filed by the petitioner and the invoice relied upon by the respondent show different signatures. The amount of the invoice is also different. 8. It is difficult in these proceedings to come to a conclusion as to which of the two invoices is the actu....

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....15,52,427/- has already been paid to the petitioner. Keeping in view the above facts, it is not possible for this court to adjudicate this disputed question of fact that have been raised by the respondent. 12. The Supreme Court in Madhusudan Gordhandas & Co. vs. Madhu Wollen Industries Pvt. Ltd., AIR 1971 SC 2600/ (MANU/ SC/0033 /1971), held as follows: "21. Two rules are well settled. First if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. Again, a....