(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR)
1. The present appeal is filed by the appellant against the order dated 07.10.2011 passed by the learned Single Judge in Company Petition No.242 of 2009. By the impugned order the learned Single Judge dismissed the petition filed by the petitioner being Company Petition No.242 of 2009. The aforesaid petition was filed by the petitioner seeking winding up of the respondent Company on the ground that the Company has neglected to pay the dues of the appellant, and therefore, the Company deserves to be wound up. The claim of the appellant against the respondent Company is about Rs.2,62,798/- in connection with the payment of embroidery work carried out by the appellant-Company. Appellant company demanded an amount of Rs.18,21,175/- from the Respondent-company. According to the appellant, the appellant-Company is entitled to recover in all Rs.18,21,175/- towards said embroidery work carried out by them. As against this the Respondent-Company has paid only Rs.15,58,375/- towards the job-work carried out by the appellant. Hence, remaining amount of Rs.2,62,798/-, as against the demand of appellant was not paid.
2. Heard learned counsel for the respective parties.
3. According to the appellant, a statutory notice was also served to the Respondent-Company which was not replied back nor any payment was made towards outstanding dues. Thereafter, the petition was filed and the same was opposed by the respondent-company. According to the respondent-company the entire amount was paid and that the claim made by the appellant is nothing but blackmailing the respondent-company by way of initiating winding up proceeding. The embroidery work was carried out by way of job-work by the appellant. According to the defence of the respondent-company the embroidery work, which was carried out by the appellant was of inferior quality as well as the payment was already made and the demand of the appellant-Company is therefore, unjust and illegal and no amount is due from the respondent-company.
4. We have gone through the order of the learned Single Judge. We have also gone through the original company petition and reply filed by the respondent Company in the same. It is required to be noted that the respondent company has already paid Rs.15,58,375/- towards job-work and according to the respondent the additional demand of Rs.2,62,798/- is not at all justified. It is not disputed that the Respondent-Company is a going concern and it has employed 150 employees.
5. Considering the said aspect, the discretion exercised by the learned Single Judge is not required to be interferedwith in this appeal. In view of the serious dispute raised by the respondent-company about the claim of the appellant-company, who is unsecured creditor this is not a case in which the respondent-company is required to be wound up by entertaining Company petition.
6. Considering the financial affairs of the respondent company and also considering the dispute involved in the company petition, the appeal deserves to be dismissed. Accordingly, the appeal stands dismissed. However, it shall be open for the appellant to approach the concerned Civil Court for recovery of the amount in question by initiating appropriate proceedings.
(P.B.
MAJMUDAR, J.) (MOHINDER PAL, J.) MEHUL Top