Adarsh Kumar Goel, J.
1 This appeal has been preferred against order of learned Company Judge dismissing the winding up petition filed by the Appellant on the ground of inability of the Respondent company to pay an admitted debt.
2 Case of the Appellant is that it supplied goods to the Respondent for the period from 29.10.2005 to 19.3.2007 and according to the claim of the Appellant, the balance amount left was Rs. 1110147.10. The Appellant served a demand notice, to which the Respondent in its reply dated 10.1.2008, admitted the liability. However, the Respondent filed a suit on 2.4.2008 raising CAPP No. 32 of 2010 a claim against the Appellant. According to the Appellant, the said suit was a counter-blast to the winding up petition and was based flimsy grounds. No dispute was raised about the quality of material supplied at appropriate time.
3. A reply was filed to the winding up petition, denying liability and stating that the Respondent had offered to reconcile the accounts and to pay such amount as may be found to be payable, but the Petitioner did not accept the same.
4. Learned Company Judge noticed that the Respondent offered to pay the amount claimed by the Appellant subject to furnishing of bank guarantee and subject to decision of the Civil Court, but the Appellant did not accept the offer. Since there was a bonafide dispute between the parties, no case for winding up was made out. Finding recorded by learned Company Judge is as under:
Admittedly, the Respondent-company has already initiated proceedings for recovery of Rs. 28,48,352/-. The Respondent has also showed its willingness to pay the amount due and payable to the Petitioner subject to furnishing of a Bank Guarantee by the Petitioner. The willingness of the Respondent to pay the amount claimed by the Petitioner shows that Respondent-company is not unable to pay its debts and the amount claimed is bona fidely disputed.
In view of the above said fact I do not find any case is made out for admission of the present petition. Consequently, the present petition is dismissed.
5. We have heard learned Counsel for the parties.
6. Learned Counsel for the Appellant submits that since no dispute was raised when the goods were supplied, the Respondent could not be allowed to raise dispute about the payment at this stage.
7. We are unable to accept the submission. Parties had continuing dealings and there is a dispute of reconciliation of accounts. The matter is pending in the Civil Court. Respondent having sought to pay the amount subject to furnishing of bank guarantee and subject to decision of the Civil Court, it cannot be held that there is no bonafide dispute. Order of winding up is a discretion, to be exercised in the facts and circumstances of each case. Learned Company Judge has given valid reasons for not accepting the prayer for winding up.
8. We, thus, do not find any ground to interfere with the impugned order.
The appeal is dismissed.
