M. P. CHANDRAKANTARAJ, J.

( 1 ) THIS is a petition filed by one U. V. Shenoy under Ss. 433 (e) and (f) read with Ss. 434 (1) (a) and 439 (1) (b) of the Companies Act (hereinafter referred to as the Act) praying for an order winding up the 1st respondent-Company.

( 2 ) IT is petitioner's case that the 1st respondent-Company owes a sum of Rs. 33,490-55 in respect of certain items of goods supplied by him to the Company. It is unnecessary to set out in detail the claim. It is further alleged that some of the amounts due had in fact been paid by cheques which on presentation to the syndicate Bank, Gandhinagar Branch came to be dishonoured - In that circumstance a fresh demand was made and statutory notitce issued in spite of which the 1st respondent-Company and the Directors failed and neglected to pay the sums demanded. Therefore, the petition.

( 3 ) THE petition has been resisted on the ground that no sums are due by the company or its Directors to the petitioner in as much as the various items of goods supplied were returned as they were of sub-quality than what was contracted. It is further alleged by the managing Director of the Company that on account of the sub-quality of goods supplied by the petitioner, his contract to supply link panels to the Indian Telephone industries was cancelled and therefore the petitioner is not entitled toi his prayer.

( 4 ) THE parties were permitted to file documents and mark the same by consent. Oral evidence of the petitioner as well as the Managing Director of the 1st respondent-Company in respect of their respective stands was also recorded by me. On carefully going through the evidence I am satisfied that the 1st respondent-Company has a tenable defence for the claim made by the petitioner. To decide the question at to what sums would be due in the ultimate analysis is not possible in this summary proceeding. No doubt, the fact of the issuance of the cheques and the same being dishonoured has been established. That, however, has been explained by the 2nd respondent. In any event, I am satisfied, prima facie, that it is a matter which can more appropriately be agitated in a properly framed suit in a Civil Court than be agitated in this summary proceeding as to the liability of the respondents.

( 5 ) THIS is not a fit case in which this court should exercise its discretion under S. 433 of the Act and proceed to make an order for winding up the 1st respondent-Company.

( 6 ) THEREFORE, the petition is rejected with liberty reserved for the petitioner to recover the sums from the respondents in a properly framed suit in a civil action in accordance with law.

( 7 ) BUT in the circumstances of the case, there will be no order as to costs.

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