M.S. Sonak, J.

1. Heard learned counsel for the parties.

2. The challenge in this appeal is to the order dated 27th September, 2017 made by the learned Company Judge in Company Petition No. 192 of 2016 in the following terms :-

“(i) The respondent shall deposit a sum of Rs. 1,45,79,032/- Prothonotary and Senior Master of this Court within a period of 8 weeks from today.

(ii) In the event deposit is made and if a suit is filed by the Petitioner, the amounts so deposited will be transferred to the suit account and thereafter the company petition will stand dismissed.

(iii) If the amount is not so deposited, the petition shall revive and shall stand admitted, returnable within six weeks from the date of default and be advertised in two local newspapers i.e. Free Press Journal (in English) and Navshakti (in Marathi) and in the Maharashtra Government Gazette. Delay in publication of the advertisement in the Maharashtra Government Gazette shall not invalidate the advertisement and shall not constitute non-compliance of this direction or of the Company (Court) Rules, 1959.

(iv) The Petitioner shall deposit an amount of Rs.10,000/- with the Prothonotary and Senior Master of this Court towards publication charges, within two weeks from the date of default, with intimation to the Company Registrar failing which the Petition shall stand dismissed for non prosecution.

(v) The learned Counsel for the Respondent Company waives service of the Petition under Rule 28 of the Companies Court Rules, 1959.

(iv) Petition is disposed of in the above terms.”

3. Mr. Sancheti, the learned Senior Counsel for the appellant submits that this is not a case where any 'debt' can be said to be due and payable by the appellant to the respondent. In the absence of any debt due and payable by the appellant, no petition was maintainable for winding up of the appellant.

4. Mr. Sancheti, by way of elaboration submits that the appellant was only a broker through whom the respondent traded at the National Spot Exchange Limited (NSEL). The appellant has nowhere denied receipt of an amount of Rs. 1,45,79,032/- from the respondent for the purposes of the transaction involving a paired contract concerning purchase and sale of White Refined Sugar-M Grade ('Sugar') at the NSEL. The appellant, consistent with the instructions received from the respondent carried out the transaction and even issued contract notes for purchase and sale of sugar. In terms of transaction which was described as T+2 (purchase segment) and T+25 (sale segment), the respondent after a period of about 25 days from the date of the transactions i.e. 15th July, 2013, was to receive an amount of Rs.1,47,94,679/- towards the sale of sugar under the T+25 segment of the transaction. However, on 30th July, 2013, all transactions and operations at NSEL were suspended and therefore, the appellant upon receipt of proportionate amounts from NSEL, has paid the same over to the respondent.

5. Mr. Sancheti submits that it is not even the case of the respondent that it is the appellant which is liable to pay this amount, unless such amount is paid by the NSEL to the appellant. The appellant has nowhere denied the liability to pay such amount to the respondent once the same is received from the NSEL. In fact, from out of the proportionate payments received from NSEL, the appellant has made and respondent has received without demur, proportionate payments in respect of the transactions.

6. Mr. Sancheti submits that in such a situation, it cannot be said that there existed any debt due and payable by the appellant to the respondents, which the appellant can be said to be a failed or neglected to pay to the respondent. Mr. Sancheti relies upon M/s. Greenhills Exports (P) Ltd., and others Vs. Coffee Board – ILR 2001 KAR 2950 and E-City Media Private Limited Vs. Sadhrta Retail Limited – 2009 SCC OnLine Bom 1813 in suppo