@JUDGMENTTAG-ORDER
H.N. Nagamohan Das, J.@mdashThe petitioner-company has filed this petition u/s 433(e) of the Companies Act, 1956 (for short ''the Act'') for winding up of the respondent-company.
2. Petitioner is a private limited company incorporated under the Act. The petitioner-company supplied material called Epoxy - a chemical used to fill the cracks of the granite to the respondent-company. As per the statement of accounts maintained by the petitioner-company, the respondent-company was found due a sum of Rs. 4,21,894 as per Annexure A. Despite repeated requests, demands and statutory notice as per Annexure B, dated 13-11-2008 the respondent-company failed to comply the demand made in the notice. Having no other alternative the petitioner-company is before this Court.
3. The respondent-company entered appearance and filed statement of objections, inter alia, contending that the material supplied by the petitioner-company was sub-standard material and as a result, the respondent-company had to incur extra cost. Consequently the respondent-company by their letter dated 23-6-2007 claimed compensation for the extra cost incurred by them as per Annexure R-1. Further the respondent-company contends that towards excess cost incurred by them a sum of Rs. 2,50,000 the petitioner-company supplied material under a consignment and the same is acknowledgement by the respondents in their letter dated 3-4-2008 as per Annexure R-2 and the voucher dated 3-4-2008 -Annexure R-3. Therefore, the respondent-company disputes the claim of petitioner-company.
4. Heard arguments on both the side and perused the entire petition papers.
5. The Supreme Court in the case of
An order u/s 433(e) is discretionary There must be a debt due and the company must be unable to pay the same. A debt under the section must be a determined or a definite sum of money payable immediately or at a future date. The inability referred to in the expression ''unable to pay its dues'', in Section 433(e) should be taken in the commercial sense. In that, it is unable to meet current demands. It is plainly and commercially insolvent - i.e., to say that its assets are such, and its existing liabilities are such as to make it reasonably certain as to make the Court feel satisfied - that the existing and probable assets would be insufficient to meet its existing liabilities.
6. In the instant case, there is no plea and there is no material to show that the respondent-company is unable to pay the debt due to the petitioner-company. Further the claim of petitioner-company is denied by the respondent-company. There is no material on record to show that prima facie the respondent-company is due in a sum of Rs. 4,21,894. Further having regard to the defence taken by the respondent-company it is a tribal issue. In the circumstances, this is not a fit case to exercise the extraordinary discretionary jurisdiction of this Court u/s 433(e) of the Companies Act. Accordingly, the petition is hereby dismissed.
