JUDGMENT :

K.A. Puj, J.

The petitioning creditor, namely, M/s. S.M. Patel Iron Traders P. Ltd., has filed this petition under sections 433 and 434 of the Companies Act, 1956, for winding up of the respondent-company, namely, Sugam Construction P. Ltd., on the ground that the respondent-company has failed to discharge its liability of Rs. 60,35,985 (principal Rs. 46,84,094 and interest Rs. 13,51,891) as on October 15, 2008, towards the petitioner.

2. This court has issued notice on July 6, 2009. Pursuant to the notice, Mr. A.S. Vakil, the learned advocate appeared for the respondent-company. An affidavit-in-reply is filed on behalf of the respondent-company on August 25, 2009, denying the liability of the respondent-company. On behalf of the petitioner, affidavit-in-rejoinder is filed on February 22, 2010. The respondent-company has filed its affidavit-in-sur-rejoinder on April 5, 2010, to which affidavit-in-sur-rejoinder is filed on behalf of the petitioner on May 10, 2010.

3. Since the pleadings of the parties are completed, the petition is taken up for hearing.

4. Mr. S. N. Soparkar, learned senior counsel with Mrs. Swati S. Soparkar, learned advocate appeared for the petitioner. He submitted that the petitioner has been carrying on the business with the respondent-company for the last many years and a running account for the same is being maintained in the books of account of the petitioner. All the payments made by the company for the supplies are duly credited to its accounts. At the request and pursuant to various oral orders placed by the company with the petitioner during the financial year ended on March 31, 2007, the petitioner had supplied various materials to the company. Against the said supplies, the petitioner had raised various invoices from time to time for the orders placed. The details of the unpaid invoices along with the copy of the unpaid invoices are produced on the record of this petition. Along with the outstanding opening balance, the total dues at the end of the year amounted to Rs. 1,28,42,344. The material supplied by the petitioner was accepted by the respondent-company and no disputes were ever raised at any point of time about the price, quality and/or quantity of the same. The company has acknowledged the supply of all the materials by confirming the delivery challans. Considering various payments made by the company from time to time during the said financial year, totalling to Rs. 8,58,250 an amount of Rs. 46,84,094 remained outstanding. A copy of the ledger account of the company in the books of the petitioner for the period from April 1, 2006 to March 31, 2009, produced on the record of this petition shows that the outstanding dues of the petitioner from the respondent-company are Rs. 46,84,094. In spite of the number of requests and reminders, the said outstanding amount was not paid. Though substantial payment was outstanding towards the material supplied as per the petitioner's books of account, no further payment has been received by the petitioner from the company after March, 2007.

5. Mr. Soparkar further submitted that even as per the company's books of account, an amount of Rs. 48,84,092 has been confirmed as an outstanding amount to the petitioner. The same is duly reflected in the latest audited balance-sheet of the company as at March 31, 2007, which was signed by the concerned directors of the company on October 1, 2007. This confirms that the respondent-company has acknowledged the debt till that date without any dispute. Since no further payment has been made to the petitioner towards the admitted liability of legitimate outstanding dues, the same amount has to be carried forward in the subsequent balance-sheet as well.

6. Mr. Soparkar further submitted that as agreed between the parties, the payment for the said supply of materials was to be effected within 30 days from the date of issuance of invoice, failing which the company shall be liable to pay interest at 18 per cent. per ann