DIGITAL DATA SERVICES Vs. SHARP INDUSTRIES LTD

JUDGEMENT

(1.) This is a petition filed under Section 433, 434 of the Companies Act, 1956 seeking an order for winding up of the Respondent company. The Petitioner in this petition is claiming that an amount of Rs.2,30.000/- is due to the Petitioner from the Respondent as price of the computers supplied. It is the defence of the Respondent company that the computers supplied by the Respondent to the Petitioner were defective. It was pointed out to the Petitioner by a letter in the month of April-1996 that the computers supplied to him are defective and that the system is not working. According to the Respondent, Petitioner has not done anything in this regard with the result that the system is lying idle, unused. It is further the defence of the Respondent that the Respondent company is not in position to pay its debts and that about 250 workers are employed by the Respondent and that it is paying Rs.18 lacs per month as salary to the employees. There is no counter-affidavit filed by the Petitioner denying that the Respondent had not sent letters pointing out defects in the computers. There is also no counter affidavit filed denying the allegations that the Respondent is financial good and that it has engaged 250 workers and they are being paid amount of Rs.18 lacs p.m.. In this circumstance, in my opinion, the defence put up by the Respondent company is substantial and bonafide one. It cannot be said that the defence is merely a cloke to cover its inability to pay its debts. The learned counsel for the Petitioner submitted that the Respondent has not replied to the statutory notice given by the Petitioner. In my opinion, whether a reply is given to the statutory notice or not is immaterial because, even in the absence of reply before admitting the petition for winding up of a company, Court has to be satisfied that the debt in relation to which the petition has been filed is clearly due. For satisfying itself, as to whether the debt is clearly due or not, Court is entitled to go into the defence put up before the Court in affidavit filed in reply to the Petition. Therefore, as I find that the defence put up by the Respondent in its affidavit in reply is substantial, this company petition for winding up of Respondent cannot be entertained. It is rejected.