The main legal point established in the judgment is that a winding up petition will be dismissed if the debt is bona fide disputed by the company and the defense is substantial and likely to succeed in point of law.

JAYANT NATH, J.

1. The present petition is filed under Sections 433 (e) 434(a) and 439(a) of the Companies Act, 1956 for winding up of the respondent company.

2. Learned counsel for the petitioner has pointed out that a rejoinder has been filed. However, the record of this court shows no rejoinder has been filed. Learned senior counsel for respondent submits that a copy of the rejoinder filed by the petitioner has been received by the respondent. The petitioner has placed on record a copy of the rejoinder. The same is taken on record. Registry may scan the same and place it on record.

3. The case of the petitioner is that sometime in 2001, NTPC was planning to set up power plants in India to further increase their power generation capacity. The respondent company was planning to expand its base in India. The parties accordingly entered into a consultancy agreement dated 20.08.2003 whereby the petitioner company agreed to provide professional services for advising the respondent company regarding the NTPC contracts. Clause 4 of the agreement provided a consultancy fee of Rs.12,65,69,100/-. Fifty per cent of the amount was payable in the beginning. This amount has admittedly been received by the petitioner. The dispute pertains to the balance 50 per cent fees. As payments were not received by the petitioner despite the fact that the respondent have received their payments from NTPC, the petitioner issued a demand notice under Section 434 of Companies Act on 05.07.2016 seeking payment of outstanding amount of Rs. 6,32,84,566/-. The respondent did not pay. Hence the present winding up petition.

4. I have heard the learned counsel appearing for the petitioner and learned senior counsel appearing for the respondent.

5. The learned senior counsel has while relying upon the reply of respondent made the following submissions as to why the present petition is liable to be dismissed:

(i) He firstly pleads that the claim of the petitioner is barred by limitation.

(ii) He pleads that the cause of action in the present case is said to have arisen some time in 2005 whereas the winding up petition has now been filed in 2016. He relies upon invoice dated 06.09.2013 said to have been raised by the petitioner claiming an amount of Rs.16,96,02,637/- It is pointed out that the amount is claimed along with interest @ 18 per cent per annum w.e.f. June, 2004. It is pleaded that in view of the said demand it is manifest that as per the petitioner, the cause of action arose in June, 2004 and that is why interest is being claimed from the said date. To support his contention, reliance is also placed on the statutory legal notice sent by the petitioner on 05th July, 2016 where again the petitioner has sought interest @ 18 per cent per annum from 2005 till date on receipt of payment. Learned senior counsel for the respondent has also submitted that it is for the petitioner to file a suit for recovery and take advantage of section 14 of the Limitation Act as per law.

(iii) It is pleaded that the agreement was valid only upto 2008. Reliance is placed on clause 4 of the agreement which states that the agreement between the parties is valid for a period of 5 years from the date of its signing. It is pleaded that as the agreement itself expired in or around 2008, the claim of the petitioner which is now sought to be pressed in this winding up petition in 2016 is barred by limitation.

(iv) It is further pleaded that nothing is payable to the petitioner and the dues claimed are disputed. Reliance is placed on the submissions made in the counter affidavit filed by the respondent where a categorical averment has been made that the petitioner have failed to perform their duties in terms of the agreement. Reliance is also placed on communication dated 14.05.2009 sent by the respondent where it is stated that the respondent have denied that any amount is payable. This communication was sent pursuant to a letter dated 01.04.2009 said to have been sent by the petition