1. Invoking Sections 433 (e) and 434 of the Companies Act, 1956, this company petition has been filed for winding up of the respondent Company.

2. Facts pleaded in the petition to claim relief of winding-up are as under: -

(2.1) The petitioner advanced unsecured loan to the respondent Company bearing interest at the agreed rate of 12 % per annum amounting to Rs.5,61,765/- as on 31-3-2003. During the financial year, the respondent Company has paid to the petitioner a sum of Rs.77,974/- towards accrued interest at the rate of 12% per annum after deducting TDS of Rs.8,187/- as per the provisions of the Income Tax Act. It is further case of the petitioner that the unsecured loan suddenly disappeared from the books of accounts and balance sheets of the respondent Company due to fraud and forgery committed by the Directors of the respondent Company and the unsecured loan was not reflected in the balance sheets and books of accounts of the respondent Company in 2003-04, 2004- 05 and 2005-06 to 2008-09. Therefore, legal notice dated 28-2- 2010 (Annexure P-2) was served upon the respondent in conformity with the provisions contained in Section 434 (1) of the Companies Act and thereafter, the respondent Company was called upon to repay the aforesaid unsecured loan within the statutory period of three weeks from the date of service of the said legal notice. By reply Annexure P-3 dated 26-3-2010, the respondent Company refused to repay the amount of aforesaid unsecured loan to the petitioner and thus, this petition for winding up of the respondent Company in accordance with Sections 433 and 434 of the Companies Act, 1956 has been filed for winding-up of the respondent Company.

(2.2) The Court has issued notice to the respondent at the preadmission stage to show cause for winding-up of the respondent Company. Reply to show cause been filed by the respondent Company. This is how the petition is before this Court at preadmission stage for admission on the question of winding-up of the respondent Company.

(2.3) Reply has been filed by the respondent Company and plea of discharge has been taken that liability was already discharged by the respondent by way of cheque dated 15-2-2004 of the State Bank of India amounting to Rs.5,97,058/- which has been received by the petitioner and it was never presented by the petitioner for clearing for the reasons best known to them and it was again renewed by the respondent Company in favour of the petitioner in the month of December, 2004, even the renewed cheque was not presented for clearance due to some ulterior motive and at the belated stage to exert pressure for such a liability, which has already been discharged in the year 2004, this company petition under Section 433 of the Companies Act has been filed. It is further submitted that the respondent Company is commercially solvent and current assets of the company as on 31-3-2016 comes out to Rs.1,96,15,860/-. Thus, the financial condition of the respondent Company is in very good shape and the company has been able to carry out its business and functioning in the past and shall also be capable to do the same in the future. The audited financial statements of the years 2013-14, 2014-15, and 2015-16 have been filed collectively. This defence is an alternative defence of the respondent Company.

3. Mr. Prafull Bharat, learned counsel appearing for the petitioner, would submit that the respondent Company is unable to pay its debt as it is commercially insolvent and therefore the present company petition be admitted for winding-up of the respondent Company.

4. Mr. Adhiraj Surana, learned counsel appearing for the respondent Company, would submit that the respondent Company has discharged the liability by making payment of amount in dispute and the respondent has valid and bona fide defence based on substantial ground, therefore, there is no neglect to pay within the meaning of Section 434 (1) (a) of the Companies Act and the present company petition has o