TaxTMI 
TaxTMI 
2013 (7) TMI 1237
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.....2013 is granted. After ascertaining as to whether the said amount has been paid or not, an appropriate order will be passed on 11.7.2013." 3. Mr. Godiawala, learned advocate for the respondent company submitted that in view of and in compliance of the order dated 9.7.2013 the respondent company has already paid Rs. 2,61,882/- (being admitted liability towards petitioner) within time limit prescribed by the Court. 4. Since Mr. Dhaval Shah, learned advocate for the petitioner is not present, there is no objection or dispute against the said declaration and submission made by learned advocate for the respondent. 4.1 Therefore, present order is passed subject to any objection by the petitioner against the said statement made by learned advocate for the respondent on behalf of the respondent company. 5. Now, the petition and the relief prayed for by the petitioner are required to be considered in light of the above mentioned action of the respondent company viz. admitted liability has been paid / discharged by the respondent company. 5.1 So far as the case of the petitioner is concerned, the petitioner has claimed that in or about May 2011 the respondent company had appr....
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....ld, supplied and delivered by the petitioner, the respondent company is bound and liable to make payment of the outstanding dues under the above referred invoices. 6. Thus, the petitioner has taken out present petition claiming that the respondent company is unable to discharge its debt. 6.1 The said allegation is made on the premise that the respondent company has failed or neglected to pay a sum of Rs. 4,31,122/- being its debt towards petitioner company and that the said amount has not been paid to the petitioner despite repeated requests and service of the statutory notice dated 12.9.2012. 6.2 Considering the claim of the petitioner, the respondent was called upon by notice of the Court. 6.3 Upon receipt of the notice the respondent has filed reply affidavit dated 9.4.2013 which is countered by the petitioner by rejoinder affidavit dated 8.7.2013. 6.4 In the reply affidavit the respondent has claimed, inter alia, that:- "4. The petitioner kept various facts up sleeves and tried to misled the Hon'ble Court. In one of the ledger account for the period 1st April, 2012 to 31st January, 2013, the petitioner itself has acknowledged about Sale Return agains....
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....an be adjudicated on the basis of apprehension and no prayer can be granted on apprehension. The petitioner has failed to make out its case for winding up and hence making statement and claiming at paragraph 10 about appointment of official liquidator or any fir person as provisional liquidator are denied. The said document is baseless and unlawful. There is no question of granting any interim and ad-interim reliefs, further as stated at paragraph 11 no orders of injunction should be passed against the respondent company, their directors, officers, agents, servants etc. for restraining as stated. In regard to paragraph 12, with the immense respect merely the registered office of the company is situated in the State of Gujarat does not entitle the petitioner to file the winding up petition on vague and false statements made in the petition. There is no case as made out for winding up and further there no willful neglect or failure on the part of the company and hence there is no cause of action ever arose for filing of the winding up petition. The petition is filed for malicious intention and to harass the company. In regard to statement made paragraph 13, the company has appropriat....
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....aid aspect of the matter is known to the petitioner and the petitioner has purposefully and deliberately kept such issue up sleeves while preferring the present petition. Further due to such defective goods which were supplied in which one piece was returned for replacement but there is none and other inverters of which one was broken and hence it was agreed for giving discount of Rs. 1,00,000/- which was in fact agreed but when the event took place on 7.2.2013, the company gave a reply dated 8.2.20132 i.e. the next day." 6.5 From the said reply affidavit of the respondent it appears that according to the respondent company it has some grievance regarding quality of goods supplied by the petitioner and that therefore it had also raised debt note against petitioner. 6.6 The respondent company has tried to rely on the communication dated 8.2.2013 to support and justify the said claim. 7. In this context it is not possible to overlook the fact that the said communication appears to have been issued by the respondent company only after statutory notice dated 12.9.2012 and it prima facie appears that prior to the statutory notice, the respondent had not raised any dispute as re....
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.... that the company should be wound up under the circumstances specified in section 424G: Provided that the Tribunal shall make an order for winding up of a company under clause (h) on application made by the Central Government or a State Government. 434. Company when deemed unable to pay its debts. (1) A company shall be deemed to be unable to pay its debts- (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding [one lakh rupees] then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; (b) if execution or other process issued on a decree or order of [any Court of Tribunal] in favour of a creditor of the company is returned unsatisfied in whole or in part; or (c) if it is proved to the satisfaction of the [Tribunal] that the company is unable to pay its debts, and, in determining whether a company is una....