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1 - 4 of 4 (0.20 seconds)Section 434 in The Companies Act, 1956 [Entire Act]
Madhusudan Gordhandas & Co vs Madhu Woollen Industries Pvt. Ltd on 29 October, 1971
6. In the present case, the dispute raised by the respondent to the claim of the petitioner appears to be bona fide and the respondent has also challenged the very correctness of the documents which have been filed by the petitioner on record as non-existent ones. This position, as explained, was not even disputed. No document executed by the respondent-company has been placed on record which the said company could be called upon to answer in its pleadings. Once the stand of the respondent-company prima facie is bona fide and is of substance then it would be difficult for the court to direct admission of such a petition. Improper motive on the part of the petitioner cannot be ruled out and the stand of the respondent-company cannot be rejected for want of bona fides or substance (refer to Madhusudan Gordhandas and Co. v. Madhu Woollen Industries Pvt. Ltd., AIR 1971 SC 2600; [1972] 42 Comp Cas 125). The respondent-company has admittedly made payment of substantial amount and as already noticed one lakh and odd remains due to the petitioner-company. Keeping in mind the nature of factual controversy raised in this petition and the fact that they would require detailed evidence, I am of the considered view that the present dispute is incapable of being settled, particularly in view of the fact that in a winding up petition the jurisdiction of the company court is limited one. It is also a settled principle of law that winding up proceedings cannot be treated as a simpliciter or normal process for recovery of money.
Tata Davy Ltd. vs Steel Strips Ltd. on 27 April, 1994
Learned counsel for the respondent also placed reliance upon a judgment of this court in Tata Davy Ltd. v. Steel Strips Ltd., AIR 1995 P&H 1, to argue that the stand of the respondent-company cannot be treated to be unjustifiable because they have already made payments and are claiming adjustments and recovery of amount for abandonment of the work as well as on the ground that they have suffered damages. I am of the view that the reliance placed upon this judgment is well founded. It must be noticed that the petition as framed is vague, indefinite and lacks material particulars. It is the obligation of a petitioner to approach the court with a definite case and to place on record all the documents which he relies upon for the purposes of proving his case. Absence of either of them would have to be construed to the disadvantage of the petitioner. The provisions of sections 433 and 434 of the Companies Act must be construed not so lightly as to divert the very purpose underlying these provisions. The company would not be unable to pay its debts if it fails to pay the debt alleged to be due which itself is not founded on any cogent pleadings and is not supported by any document. It has also come on record that the notice issued to the respondent-company was returned with the remarks of refusal. This has been stated in paragraph 8 of the petition which has been specifically denied in the corresponding paragraph of the reply filed. In the present petition, the respondent-company is again stated to have refused the notice but appearance was put on the very first date of hearing. Probably the other notices were served in the normal course.
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