2026 (7) TMI 20

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.... present company petition has been filed under Section 433(e), 434(1)(a) & 439(1)(d) of the Companies Act seeking winding up of respondent company. 4. The petitioner- Mahavir Enterprises is a proprietorship concern (hereinafter referred to as 'Firm') engaged in the business of SS Tubes, Boiler Quality Steel Tubes, Brass Tubes, 70/30 Alloy, Gun Metal Ingot, Brass, Copper, SS Rods, Bus Bars etc and its office is situated in Mumbai. 5. The respondent- M/s Gwalior Sugar Company Ltd. is a company registered under Companies Act and its registered office is situated at Dabra, District Gwalior (M.P.) (hereinafter referred to as "Company"). 6. The present petition has been filed by the firm alleging that the Company placed orders fo....

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....is a debtor within the meaning of the Companies Act, and the Company is liable to make payment of Rs. 9,10,360.64. Having failed to pay the amount, the Company is liable to be wound up under the aforesaid provisions. 9. With the aforesaid pleadings the firm has prayed for following reliefs: "(i) direct that the respondent company namely M/s Gwalior Sugar Company Ltd: be wound up under the direction of this Hon'ble Court. (ii) to appoint Liquidator attached to this Hon'ble court as Official Liquidator to wind up the respondent company M/s Gwalior Sugar Company Ltd. under the supervision of this Hon'ble court. (iii) issue all other necessary directions as may be required including the direction that the advertise....

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....gs noted hereinabove. 13. Arguments heard and record perused. 14. The winding up of the company under Sections 433(e), 434(1)(a), and 439(1)(d) of the Companies Act is permissible when the amount claimed is found to be due to the respondent. However, if there is a bona fide dispute with regard to the liability of the respondent to pay the amount and adjudication of the claim involves disputed questions of fact, the petition for winding up under the aforementioned provisions is not maintainable. 15. The Apex Court considering the aforesaid aspect in the case of IBA Health (India) Pvt. Ltd. Vs. Info-Drive Systems SDN. BHD reported in (2010)10 SCC 553 wherein in para 20 & 23 the Court held as under: "20. The question that ari....

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....to play and the winding up on the ground that the company is unable to pay its debts is not substantiated and nonpayment of the amount of such a bona fide disputed debt cannot be termed as "neglect to pay" so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956." 16. Keeping in view the aforesaid legal position, if the facts of the present case are seen, then it is gathered that there is serious dispute regarding the rate of goods supplied by the firm to the Company. Further, the company has filed statement of its account which, as per its stand, shows excess payment made to the firm. The company also asked the firm to send its representative to reconcile and settle the bills. However, no ....