G.R.Majithia, J.

1. This is a creditors petition under Section 439, read with Sections 433(e) and 434 of the Companies Act, 1956 , (for short "the Act ").

2. The averments in the petition briefly are as follows: The respondent is indebted to the petitioner-company in the sum of Rs. 17,49,865-90. It is also liable to pay interest at the rate of 22.75 per cent. per annum. A notice under Section 434 of the Act was served upon the respondent but despite service, the liability was not discharged.

3. The respondent, after service, filed a written statement, inter alia, pleading that the petitioner-company had filed Suit No. 2009 of 1987 titled as State Trading Corporation of India v. Punjab Tanneries Ltd. on the same cause of action on which the present petition is based, in the Delhi High Court. The respondent has also made a counter-claim in the suit. The petitioner-company having availed of the alternative remedy, this court may decline to proceed with the petition.

4. Learned counsel for the petitioner strongly contended that in view of the admitted notice of demand and the non-payment of the debt, the company should be deemed to be unable to pay its debt under Section 434(1)