RAMAPRASADA RAO J.

This appeal is directed against the judgment and decree of Sethuraman J., who refused to wind up a company which was sought to be wound up on an application filed by the appellant as petitioning creditor on the only ground that the respondent-company is unable to pay its debts. The appellant-firm is a partnership. It seeks the winding up of a private limited company. The promoters of the company were S. K. Somani and his wife, Hemalatha. His two brothers, N. K. Somani and M. K. Somani, are the directors of the respondent-company. They vacated at one particular point of time since they did not have the requisite qualifications to hold the office. The case of the petitioning creditor as disclosed in the petition is as follows : In or about January, 1971, S. K. Somani, one of the promoters of the respondent-company started a business under the name and style of "Shadiram and Sons" as guardian of his minor son. This firm at some point of time, due to certain civil proceedings between S. K. Somani and his brothers, was converted into a partnership. Accordingly, a partnership was formed with the wives of the two brothers and the minor son of S. K. Somani who was admitted to the benefits of the partnership. This partnership came into effect on April 1, 1971. Even on a fair appreciation of the constitution of the partnership firm and the private limited company, it is fairly clear that one is telescopicable into the other and some of the members of the family or their wives were interested either in the partnership or in the private limited company. There were transactions between the private limited company and the partnership firm. It is claimed that a sum of Rs. 4, 47, 511.58 was payable by the company together with interest at 12 per cent. per annum and a statutory demand was made as against the company for repayment of the same and as the reply thereto by the company was not satisfactory, the appellant came up with an application under section 433 of the Companies Act for winding up of the company under section 433(e) of the Act. The debt is not in dispute by the company but their case is one of discharge. They would say (and this was their case even in the reply to the statutory notice as is seen from exhibit R-16) that a sum of Rs. 1, 50, 000 was paid by the company to one Hanuman Steel Traders for the supply of M. S. Plates and B. P. Sheets to the partnership firm (petitioning creditor) ; a further sum of Rs. 46, 000 was paid to the Calcutta branch of the petitioner-firm towards their dealings which that branch had with them ; and by payment of a sum of Rs. 2, 51, 511.28 to Hemalatha Somani, the wife of one of the promoters of the company in adjustment of certain inter se transactions to which we shall presently refer, no amount as claimed was due. The petition for winding up was thus opposed mainly on the ground that the debt was no longer subsisting as according to the company it has been discharged by payment to the creditors of the partnership or to those who are interested in getting monies from the partnership and thus there is a dispute which is obviously bona fide as regards the existence of the debt itself. The appellant-firm did not let in any evidence but chose to cross-examine S. K. Somani who was examined on behalf of the company. The main case of the petitioning creditor is that the plea of discharge is a myth and a falsehood. The learned judge who went into the question found that the evidence did not make out prima facie the substratum of their objections, and on a fair appreciation of the oral and documentary evidence let in, it could not be said that there was no bona fide dispute as regards the debt claimed by the petitioning creditor and that in those circumstances the winding up of the company cannot be ordered as in his judicial discretion he felt it inequitable to do so. The question is whether the plea of discharge which has been raised by the respondent-company, the sum an