JUDGMENT

Jeffrey Tan J:

This is the petitioner's petition dated 16 September 1998, for an order winding up the respondent company, on the ground that the respondent is unable to pay its debts. The background facts and arguments appear as follows.

According to the petitioner, the respondent is indebted to the petitioner in the sum of RM173,096.18, it being the sum due and owing to petitioner in respect of four unpaid progress payment certificates (payment certificates Nos 5-8) for building works executed by the petitioner and it also being the sum demanded from the respondent by the petitioner's s. 218(2)(a) of the Companies Act 1965(Act) notice dated 29 July 1998, the respondent has for three weeks thereafter receipt of the said notice neglected to pay the said sum, and, the respondent is unable to pay its debts.

In its affidavits opposing the petition, the respondent denied that the sum of RM173,096.18 is due and owing to the petitioner. The respondent exhibited, (i) the respondent's reply dated 31 July 1998 (encl. 11 exh. "T-1") to the petitioner's statutory notice, and, (ii) the respondent's writ of summons dated 29 October 1998 (encl. 11 exh. "T-2") claiming from the petitioner for loss and damage for defective works allegedly executed by the petitioner. The respondents contended that by reason of the defective works, the respondent would not pay the claim even though able to do so, as the claim is in dispute, and, that this petition was presented "to put pressure on the respondent". "The petitioner's claim should be arbitrated." The respondent further contended that the petitioner is not registered with the Lembaga Pembangunan Industri Pembinaan Malaysia and so could not claim against the respondent, that despite several demands the petitioner had failed to furnish a performance bond, that the claim of the petitioner is far in excess of the actual work done, that the respondent is finalising an action against the architect, that this court is not the proper forum to adjudicate on the dispute, that the respondent has proof that the claim of the respondent was not an afterthought, and that the letters of Hock Hua Bank Berhad (encl. 19 exh. "T-6") evince that the respondent has the means to settle the claim of the petitioner, that the respondent is not a creditor within the meaning of s. 218 of the Act, that a further letter of the Hock Hua Bank Berhad (encl. 30 exh. "T-8") evince that the respondent is still solvent, that the respondent's payment (encl. 32 exh. "T-9") to its contractor is proof of the sound financial standing of the respondent, and, that the quantity surveyor's report says (encl. 24 exh. "T-7") that the petitioner is indebted to the respondent in the sum of RM55,023.79.

In its affidavits, the petitioner contended however, that the sum of RM173,096.18 is due and owing pursuant to interim certificates issued by the respondent's architect, that those payment certificates confer temporary finality, that the petitioner is entitled to immediate payment in full, and, that the reply (encl. 11 exh. "T-1") and claim were afterthoughts. The petitioner had not breached the contract and had replied, on 12 August 1998 (see encl. 14 exh. "YHM-8"), to the respondent's allegations. The respondent's architect admitted that there were outstanding payments (see encl. 2 exh. 7A). Defective works were not alleged at all in the respondent's reply. The respondent's action was filed only after the presentation of this petition and after the petitioner had terminated the contract by reason of the non-payment of the certificates for payment. There was no notice of any defective works. The alleged defects are not defects at all. There are no defects. In any event, the contract had been terminated for non payment and the petitioner "is not liable for the defects". The respondent's claims are baseless. The petitioner's claim cannot be disputed. Defective works are being raised to deny payment to the petitioner. There could not be any cr