Ashim Kumar Banerjee, J.

I have the proud privilege to go through the well versed judgment and order of my esteem colleague My Lord justice Ashis Kumar Chakraborty. With deepest regard I have for His Lordship, and with all humility, may I say, I could not convince myself to agree with His Lordship’s ultimate decision on the issue. His Lordship’s appreciation of factual scenario is commendable and would need no repetition. So is the discussion on the point of law. However, my perception would give a relook to the legal proposition that would be relevant herein. In the present context, such relook would prompt me to hold otherwise.

The law of winding up as I understand from the statute law so explained by the judge made law so far pronounced, would perhaps not permit the company Court to admit this petition for winding up.

Let me discuss the law as I understand:

In a winding up proceeding, the learned company Judge has wide discretion to exercise. Even if the learned Judge is satisfied on the claim of the creditor, it could be refused considering various other aspects. In a civil suit, where creditor seeks a debtor and the debtor has successfully proved his claim decree would be a natural course. In a petition for winding up, it would depend upon various other factors irrespective of proof of claim. At the pre admission stage, the company Court would examine the claim and if it is a just debt that would have no defence from the company, the admission would be inevitable. Section 434 of the Companies Act 1956 would give handle to an unsecured creditor to sue the debtor company for winding up on the strength of the presumption of insolvency. The provision would provide, when the creditor would raise a demand on the company, the company would have two courses left open, either to secure the claim to the satisfaction of the creditor or dispute the claim with plausible cause.

A creditor who has unpaid dues could only be reasonably satisfied if company has the means to pay. When the creditor serves the notice upon the company asking them to pay off the dues the company has option either to pay off or dispute the same. Even if the company has means to pay and does not pay without any reasonable cause it would be liable to be wound up.

Once the creditor established his right to claim the amount more than Rs. 500 the onus would shift on the company to rebut such claim by raising bona fide dispute. Once the bona fide dispute is raised it would weaken the chance of admission of the winding up petition, otherwise admission is an obvious consequence. An unsecured creditor would maintain a winding up proceeding with a just claim upon service of statutory notice of demand that either remains unreplied or is dealt with without any plausible defence. For the company, once it faces a winding up proceeding followed by a statutory notice of demand it has to rebut the presumption of insolvency that would arise on service of the statutory notice. The presumption could only be rebutted on raising a bona fide dispute. Merely raising a dispute having no support from reality, would be moonshine, sham, colourable and would not be regarded as a good defence to resist a winding up proceeding. In this regard, I would be failing in my duty if I do not mention and rely upon the decision in the case of M/s Mechalec Engineers and Manufacturers vs. M/s Basic Equipment Corporation reported in All India Reporter 1977 Supreme Court Page-577 that quoted the celebrated decision of this Court in the case of Kiranmoyee Dassi vs. Dr. J. Chatterjee reported in Calcutta Weekly Notes 1945 volume- 45 page-246, five criteria stipulated therein, to deal with summary proceeding that would also be available for consideration by a Company Judge dealing with a winding up proceeding, would be apt in the present case and are quoted below:

“a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to