Court will not order winding up if denial of debt is bona fide.

A.S. VENKATACHALAMOORTHY, J.

The above appeal has been filed against the order of the learned single Judge dismissing the petition filed by the appellant herein under Section 433(e) & (f) read with Section 434(1) and 439 of the Companies Act, 1956, wherein the appellant herein prayed for winding up of respondent Company viz., NEPC India Limited.

The Appellant/petitioner initiated the said proceedings viz., C.P. 17 of 1999 contending that it is a Company, incorporated under the Laws of Denmark, having its registered office at Alsvoj 21 DK - 8900, Randers, Denmark with various objects as set out in the said petition. It is the case of the appellant that there has been business transactions between the parties and under minutes No. NEPC-024 dated 16-6-1997 substituted at the request of the respondent by the revised minutes NEPC-025 dated 16-6-1997 and letters Nos. NEPC-026 dated 17-6-1997 and NEPC-027 dated 17-6-1997, respondent confirmed that a sum of DKK 3, 000, 000 (Danish Kroner Three Million only) is due and payable by the respondent to the appellant, which it agreed to pay gradually over a period of 6 to 12 months. It is the further case of the appellant that it sent a notice dated 22-12-1998 as contemplated under Section 434 of the Companies Act calling upon the respondent to pay the said sum to the petitioner within a period of three weeks from the date of notice and that though respondent acknowledged the receipt of notice, did not make payment but only sent an interim reply dated 14-1-1999 simply denying even the admitted claim. The appellant would plead that the respondent Company is heavily indebted and is unable to pay its debts and under those circumstances, the Company should be wound up in order to protect the interest of all concerned and that it is just and necessary that the order of winding up is to be passedThe respondent herein resisted the said petition inter alia contending that the petition is liable to be dismissed since the claim made by the petitioner is bona fidely and validly disputed by it and in fact it is only the appellant who is liable to pay a sum of Rs. 8, 35, 16, 000/-, which amount the appellant has admitted in their various correspondences. The specific case put forward by the respondent is that the Company petition is filed only with an intention to harass the respondent. It is the case of the respondent that pursuant to the agreement appellant undertook to supply spare parts to the respondent and accordingly supplied, but the same were found to be defective. In fact, respondent on various occasions pointed out the defective spares supplied and appellant specifically undertook to compensate the same. According to the respondent, the claim of the appellant that the respondent admitted the liability of DKK 3, 000, 000 is not correct and the said payment, if at all is only on performance of certain conditions by the petitioner since it was wholly conditional as evident from the subsequent correspondence. According to the respondent, no amount is payable to the appellant herein. The respondent's specific stand is that there is no such letter dated 17-6-1997 bearing reference No. NEPC-027 executed or signed, a copy of which is now produced, and it has to be noted that the appellant has never in the past produced any such letter and only as an afterthought with ulterior motive, has produced the photo copy of the same and that the said document alleged to be in existence is not referred in the Company Petition, so also, not filed or produced at the time of initiating the Company Petition, and in fact only subsequent to the arguments advanced by the counsel for the respondent on the application for revocation of admission, the appellant produced the document No. NEPC-027 in the month of April, 1999 i.e., virtually three months after filing the petition. It is the contention of the respondent that the said document is forged, fabricated and got up for the occasion much belatedly to suppor