2014 (11) TMI 1184

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....ls in manufacture sale of pet bottles. The respondent is also registered as a Company under the provisions of the Act and deals in the business of manufacture and sale of liquor. The business transactions between the parties started in the year 1996-97, when the respondent placed a purchase order with the petitioner for supply of pet bottles. The respondent opened a current account in their books of accounts in the petitioner's name. The payments were made by issuance of cheque and against such payments the supplies were made. 3. As per the case of the petitioner the respondent vide communication dated 11.12.1997 acknowledged its' liability to pay a sum of Rs. 32,09,813. On 31.1.1999 an amount of Rs. 27,12,437 was due and payable b....

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....d and if the same is not cystallized, it cannot be termed as debt. It is further submitted that in reply to notice dated 8.7.1997, the respondent has seriously disputed the claim of the petitioner and has questioned genuineness of the entries in the books of accounts. It is also submitted that the petitioner has failed to prove that the respondent is commercially insolvent. It is pointed out that the respondent is a profit making solvent company which is evident from the statements of accounts on record and there is a bona fide dispute with regard to its' liability to pay the amount in question to the petitioner. It is urged that winding up proceeding is not an alternative for recovery of money and the petitioner is guilty of suppressio....

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....ies Private Ltd., AIR 1971 SC 2600, it was held that the relief of winding up cannot be granted in a case where the debt is bonafide disputed and the defence is substantial one. It was further held that the principles on which the Court while dealing with the petition for winding up of the company bears in mind are that the defence of the company is in good faith and one of substance and the defence is likely to succeed in point of law and the company adduces prima-facie proof of the facts on which the defence depends. In the case of I.T.C. Ltd., Vs. Fomento Resorts and Hotels Ltd., 1991 (70) Com Cas 459 (Bombay), it has been held that the creditor in order to seek winding up of a company must proove that the debt is clear and unimpeachable....

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....emain unreconciled as on today and in the absence of reconciliation of the accounts, the liability in question cannot be termed as debt. In other words, the liability to pay the amount in question has not been crystalized. 9. It is noteworthy that the respondent has stated that it has never received materials allegedly supplied vide ledger entries dated 7.6.1997, 20.6.1997, 21.6.1997, 25.6.1997, 27.6.1997 and 29.6.1997. The petitioner has also failed to account for the payments made on 28.11.1998, 8.11.1998, 15.11.1998, 18.12.1998, 28.12.1998, 24.4.2000 and 30.4.2000 totalling to Rs. 9,06,475/-. The respondent has filed a criminal complaint before the Court of Judicial Magistrate First Class, Raisen for offences punishable under Sections 1....