The pendency of a suit cannot operate as a bar to maintain a winding up proceeding.

( 1 ) THE petitioning creditor had done certain share transactions on behalf of the company under an agreement dated November 8, 2000 appearing at pages 15-16 of the winding up petition. Three bills were raised on February 8, 2001, February 12, 2001 and February 27, 2001, amounting to Rs. 1,94,342. 25, Rs. 4,43,592. 50 and Rs. 4,30,999. 50 respectively aggregating to Rs. 10,68,934. 25.

( 2 ) THESE bills remain outstanding. The petitioning creditor on the other hand was holding a sum of Rs. 3,04,511. 10 on the part of the company. As the company did not make payment of the aforesaid three bills, they adjusted the said amount of Rs. 3,04,511. 10 and claimed the balance sum of Rs. 7,64,423. 15. Repeated letters/reminders were given on and from April 2, 2001, till December 9, 2002. Those letters remain unreplied. The petitioning creditor served a statutory notice of demand on May 7, 2003, through their advocate which was replied to by the company on May 23, 2003, appearing at pages 41 and 42 of the petition. For the first time in reply to this statutory notice of demand the company raised two disputes firstly, the first two bills were settled for a sum of Rs. 3,04,511. 10 as identical amount was being held by the petitioning creditor on behalf of the company that stood adjusted against the first two bills. Secondly, the third bill amounting to Rs. 4,30,999. 50 represents a consignment which was never received by the company. In the affidavit-in-opposition the company echoed their stand taken earlier in reply to this statutory notice of demand.

( 3 ) MR. M. C. Ghosh learned Counsel appearing for the company while opposing the application for winding up submitted as follows : (i) Since for the self-same cause of action the petitioning creditor has filed a suit before this Court which is still pending the winding up proceeding being parallel proceeding should not continue. (ii) The claim of the petitioning creditor is barred by laws of limitation. (iii) Since the first two bills stood adjusted by way of full and final settlement there cannot be anything due and payable. (iv) Since the subject consignment pertaining to the third bill was not received by the company and the company seriously disputed the signature appearing at the said consignment note, the third bill is not payable.

( 4 ) IN support of his first submission Mr. Ghosh has cited three decisions : (i) State Trading Corporation of India Ltd. v. Punjab Tanneries Ltd. [1989] 66 Comp Cas 634 (P and H ). (ii) N. N. Consultants Pvt. Ltd. v. Khatema Fibres Ltd. [2001] 104 Comp Cas 254 (All ). (iii) Bank of Nova Scotia v. RPG Transmission Ltd. [2003] 114 Comp Cas 764 (Delhi ).

( 5 ) CITING the aforesaid decisions Mr. Ghosh has contended that the prayer for winding up being a discretionary relief should not be granted in the instant case because of the pendency of a parallel proceeding on the selfsame cause of action.

( 6 ) ON the plea of limitation Mr. Ghosh has contended that although the bills were raised on or after February 8, 2001, since the winding up petition has been filed on February 6, 2004, the claim might be held as barred by limitation, upon a regular trial being made, as according to him, limitation is a mixed question of fact of law.

( 7 ) ON the issue of the first two bills, according to Mr. Ghosh since the said two bills stood adjusted against the amount payable to the company by the petitioning creditor, there cannot be anything due and payable on that account.

( 8 ) ON the issue of the third bill according to Mr. Ghosh a serious dispute has arisen because of the fact that the signature appearing at the consignment note according to the company, is a forged signature and the company has in fact not received the said consignment note and there cannot be any due on that account.

( 9 ) LET me first deal with the first contention raised by Mr. Ghosh. In the case of State Trading Corporation of India Ltd. v. Punjab Tanneries Ltd. [19