TaxTMI 
TaxTMI 
2016 (2) TMI 1332
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.... it is also stated that the respondent-company after lot of persuasion from the petitioner finalized the account of the petitioner and, thereafter, issued some cheques with the promise and assurance that the same would be honoured upon presentation as part payment and had also promised that for balance the company would give another cheques after clearing the cheques already handed over. It is also stated in the Petition that when the petitioner deposited the said cheques, they were returned dishonoured with the endorsement "stop payment by drawer". It is also alleged that as Company did not make the payment, the petitioner caused statutory notice issued to the Company and the Company did not reply to the statutory notice. Therefore, the Petition is filed. 3 On 16.03.2012 an exparte order of admission was passed against the Company based on the averments contained in the Petition and it was alleged that the respondent-company failed to accept the statutory notice and also did not come forward to defend the Petition. Subsequently, the respondent-company appeared and took out company application for recall of the order dated 16.03.2012 admitting the company Petition. By an order dat....
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.... 23 and 31 has observed as under "20. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding up petition as a m....
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....in such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that the company's refusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a civil court." 7 The court is not expected to hold the full trial of the matter if serious disputes are raised or a debt upon which the Petition is entered is hotly contested and doubtful. The Court should not entertain the Petition. It is the duty of the Court to examine that the Company has genuine dispute to the claimed debt or not. From the correspondence annexed to the affidavit-in-reply, it is quite obivious that serious disputes have been raised to the claim. From the time the supply has been made, the Company has raised issues on defects in quality etc. Even whether blank cheques were issued or not is a contentious issue. Therefore it is not a case that the defence of defective goods or short supply etc. is an afterthought device invented to defeat the claim of the petitioner. The company had at the earliest opportunity possible raised the disput....
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....s. Ch.No. Amount In favour of 006469 2571512.00 R S Wire Industries 006470 2057209.00 R S Wire Industries 006399 2598010.00 R S Wire Industries 006398 2769320.00 K Copper Products 006468 2096772.00 K Copper Products P.S : Cheque should be deposited only after the confirmation from Mr R B Shinde. Thanking you, Yours faithfully, For Transfab Power I Pvt. Ltd. R.B. Shinde Director. "Date : 15/12/2009 To M/s. R S Wire Industries H-4, Cama Industrial Estate Anna Nagar, Off. Walbhat Road, Goregaon East MUMBAI 63 Sub. Post Dated Cheques. Kind Attn: Mr. K.Mirani Dear Sir, Please find enclosed PDC cheque of Rs. 70,00,000/( Rs. Seventy Lakh Only) vide cheque no.006567 & Rs. 40,00,000/( Rs. Forty Lakh Only) vide Cheque no.006568 & Rs. 11,00,000/( Rs. Eleven Lakh only) vide cheque no.006569. We are sending these post dated cheques for security purpose. Please don't deposit the cheques without our confirmation. Kindly acknowledge the receipt of the same. Thanking you, Yours faithfully, For Transfab Power India Pvt. Ltd. Bharati Patil Secretary." Therefore, the averments made in t....