MUKUNDAKAM SHARMA, J.

( 1 ) THE present appeal arises out of the judgment dated 13th August, 2004 passed by the learned Company judge in Company Petition No. 255/2003 whereby the learned company Judge has arrived at a finding that the defence of the appellant herein to the winding up action was incredulous, raised belatedly and an after thought, taken up for the first time in reply to the statutory notice issued by the present respondent as a sham ground of defence to the winding up action.

( 2 ) THERE is no dispute to the factual matrix except to the conclusions arrived thereupon. It is an admitted case of the parties that the appellant company invited tenders for execution and setting up of civil piles foundation work at Chennai, Tamil Nadu and the present respondent made its offer on 13th March, 1997 for the job which was described as 675. 000 T. P. A. Plant with 60 M. W. Power Plant. The appellant company had accepted the offer of the respondent and had issued a Letter of Intent dated 17th June, 1997 in favour of the present respondent in the following terms:-

"we are pleased to issue a letter of indent for executing the pile foundations as per your offer dated 13th March, 1997,

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