2018 (5) TMI 621

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.... learned counsel for the respondent has taken two adjournments on 19.03.2018, 03.04.2018 and now the matter has been fixed for today.   2. Today, the learned counsel for the respondent states that he is not getting instructions from his client and he would like to withdraw from the matter. I, hence proceed to decide the petition. 3. This winding up petition has been filed by the petitioner under Sections 433(e), 434 and 439 of the Companies Act, 1956 (hereinafter referred to as the Act) seeking winding up of the respondent company.   4. It has been pleaded that the respondent approached the petitioner to start business transaction and placed certain orders. On 25.01.2014 the respondent issued a cheque for Rs. 73,500 in fa....

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...., he submits that several e-mails are on record to show that there was a problem in the quality of the products supplied by the petitioner. He relies upon several such e-mails in this regard. Hence, it was pleaded that no dues are payable to the petitioner.   8. I may first see the acknowledgement letter dated 01.09.2014 relied upon by the petitioner. The same reads as follows: "Date: 1st September 2014, CREDIT BALANCE OUTSTANDING AS ON DATE It is agreed that following outstanding is confirmed from our side on account of M/s Life Essentials Personal Care Pvt. Ltd. admitted to pay amount of Rs. 3531446.00 (Rupees Thirty Five Lakh Thirty One Thousand Four Hundred Forty Six Only) to M/s Saraswati Printers for the work executed....

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....s of the respondent Company show that there is one Mr.Amandeep Singh who holds 75% shares in the respondent Company. In the connected company, namely, Life Essentials Personal Care Pvt.Ltd. the said Amandeep Singh holds 50% shares whereas Mr.Sanjeev Nayyar holds 50% shares. Hence, Mr.Sanjeev Nayyar and Mr.Amandeep Singh jointly hold 50% shares each in Life Essentials Personal Care Pvt. Ltd. It becomes manifest that for the respondent Mr.Sanjeev Nayyar is not an unknown entity. He had authority on behalf of the respondent Blessing Advertising Pvt. Ltd. to execute the above letter. Respondent and Life Essential Personal Care Pvt. Ltd. were operating as common economic entities.   11. In these facts, in my opinion, the acknowledgment d....

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.... This Court in catena of decisions held that an order under Section 433(e) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression 'unable to pay its dues' in Section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilized merely as a means for realising debts due from a company." 16. The settled legal position is that the debts claimed should be payable by the respondent company. It is only where the respondent company raises ....