(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) We have heard learned senior counsel Mr. S. N. Soparkar with learned advocate Mr. Nandish Chudgar for the appellant.
Admit.
Learned Counsel for the appellant has urged that in view of intent letter dated 3rd December, 2007, it is clear that erection work was also to be carried out by the respondent. In the statutory notice, the respondent has stated that he was not required to carry out erection work, which is contrary to the intent letter. Learned Single Judge, in para 16.19 of the order, has considered this issue but has not dealt with Intent Letter and reply given by the appellant. In the reply, the appellant has denied statement made by respondent, which was required to be considered by learned Single Judge.
It is held by the Apex Court in the decision of IBA HEALTH (INDIA) PRIVATE LIMITED Vs. INFO-DRIVE SYSTEMS SDN. BHD. [(2010) 10 Supreme Court Cases 553] , that if debt is bona fide disputed on substantial grounds, petition for winding up shall not be entertained. In such a case, party seeking winding up cannot be regarded as creditor of company for purpose of winding up. It has been also held that the Court should act with circumspection and examine whether winding up petition is used as ploy to pressurize company to pay substantially disputed debt. In view of aforesaid decision of the Apex Court, the appellant is entitled for interim order.
List this matter on 13th June, 2012.
Till then, order passed by learned Single Judge on 9/3/2012 in Company Petition no. 170 of 2010 shall remain stayed.
(V.M.SAHAI, J) (A.J.DESAI, J) *asma Top