Gita Mittal, J.-By this petition under Section 433 of the Companies Act, the petitioner seeks winding up of the respondent company for the reason that it is unable to pay its admitted debts.

2. The petitioner was awarded two contracts by the respondent for providing and fixing of powder coated aluminium work for doors and windows, ventilators and partitions with extruded built up sections. The contract dated 15th of November, 2004 in respect of Windsor Greens, Sector 50 was for a total consideration of Rs.142 lakh while the contract dated 20th of May, 2004 in respect of the work to be undertaken at the Golf Vista Apartments, Plot No. GH-01, Sector-Alpha II, Greater Noida was for a total consideration of Rs. 54 lakh.

Inasmuch as Clauses 7 and 8 of the agreement are relevant for the present consideration, the same deserve to be considered in extenso and reads thus:

"7. Retention Percentage Security Deposit-10% on every Bill (subject to maximum of Rs. 5.00 lacs).

8. Release of Retel1tiol1 Money-50% to be released after six months after virtual completion and balance 50% after expiry of 12 months of defect liability period but it can be replaced by Bank Guarantee."

3. In terms of the contract, the petitioner commenced work and raised several bills from time-to-time with regard to the work undertaken. It is pointed out that so far as the work at the Golf Vista was concerned, the same was satisfactorily completed on 31st May, 2005 while the work at the Windsor Greens was duly completed on 29th September, 2005. In terms of Clauses 7 and 8 noted above, the respondent was entitled to retain 10% of the bill amount subject to a maximum of Rs. 5.00 lakh. So far as the defect liability period is concerned, as per Clause 7 of the agreement, in respect of the work at Golf Vista, the period got over on 31st May, 2006 while with regard to the Windsor Greens project, the defect liability period got over on 29th September, 2006.

4. The petitioner has claimed that a total amount of Rs. 13,63,435/- had been retained by the respondent towards the retention amount in both the contracts. The submission is that upon expiry of the defect liability period, this amount became due and payable to the petitioner.

5. The petitioner has contended that after receipt of three part payments in 2007, an amount of Rs. 10,40,326/- remains due and payable which has not been paid to the petitioner despite requests. A statutory notice under Section 434 of the Companies Act, 1956 dated 1st October, 2007 was, therefore, sent on behalf of the petitioner requiring the respondent to make payment of the amount of Rs. 10,40,326 with intarest at the rate of 21% in respect of both the contracts. As the petitioner failed to comply with the notice demand, the petitioner filed the present petition under Section 433 of the Companies Act, 1956.

6. Before this Court, the respondent has contended that the petitioner~ failed to prove that the respondent was unable to pay its debts. It is further contended that the petitioner delayed execution of the work beyond the contractual stipulation. The submission is that the respondent sent two letters to the petitioner, one being a letter dated 25th June, 2007 and a second being the letter dated 6th August, 2007 pointing out defects and deficiencies in the work. Despite the deficiencies having been pointed to the petitioner, the petitioner failed to remove the defects. Learned Counsel for the respondent has submitted that the respondent is willing to pay the petitioner in case defects are removed.

It has also been urged that the petitioner has filed a suit for recovery of the amount claimed against the respondent and that such suit being pending, the present petition seeking winding up of the respondent company for nonpayment of the same debt is not maintainable.

Reliance has been placed by the respondent on the pronouncement reported at III (2005) SLT 222=II (2005) BC 366 (SC)=AIR 2005 SC 4175, Mediqup Systems Pvt. Ltd. v. Proxima Medical Sys