1 mss CP367 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 367 OF 2010 M/s. GEEPEE AGRI PVT. LTD. .. PETITIONER Vs. M/s. MEHEK OVERSEAS PVT. LTD. RESPONDENT Mr. Mayur Khandeparkar i/b Khaitan & Jayakar for the petitioner Ms. Anita Craestilino i/b Z.J. Shaikh & M. H. Mulla for respondent CORAM: S.C.DHARMADHIKARI, J. DATED: 1/12/2011 P.C. The company petition for winding up is based on an alleged admission of liability to the extent of a sum of Rs. 5 lacs under a contract dated 5th January, 2010. According to the petitioner the amount as stated in a letter dated 4th March, 2010 addressed to the petitioner has not been remitted. The petitioner states that the company is unable to pay its debts because of the refusal to pay its admitted dues. Therefore, according to the petitioner this is a fit case where the petition for winding up should be 2 mss CP367 admitted. 2. Reliance is placed by learned counsel appearing for the petitioner on a Divisoin Bench decision of this court in the case of Tata Finance Ltd. Mumbai v. Kanoria Sugar and General Manufacturing Co. Ltd., Mumbai, reported in 2002 (1) M.L.J., 617. 3. It is not possible to accept the contentions of learned counsel appearing for the petitioner for more than one reason. Firstly there was a broker who struck a deal for the petitioner A certain consignment was booked for the purposes of the respondent, according to the petitioner, through this broker. However, the consignment booked was not lifted and the quantity remained idle. Therefore , there was correspondence and by a letter dated 19th January, 2010 addressed to the respondent what the petitioner stated was that the goods were to be lifted against advance payment but no advance payment has been made. The letter at page 73 of the petition paper book dated 28th January, 2010 once again refers to this booking and contract and states that the entire payment by cheque has not been made to the petitioner or to the broker. Therefore, the petitioner threatened that the claim of the petitioner will be proceeded with on the basis that the respondent is a defaulter and the matter will be taken into arbitration. 3 mss CP367 4. There is certain debit note, copy of which is at page 74. In response to all this what the respondent states is that it proposes to pay / adjust Rs.5 lacs towards the settlement amount under the said contract proportionately in the new bargain with the petitioner. The petitioner addressed a letter stating to be without prejudice, dated 9th March, 2010. It reiterated their demand for the entire amount and refused to accept the offer for settlement or proportionate deduction or adjustment in the new bargain. 5. This is not a case of a certain debt or money due and payable under a contract, which was arrived at between parties. The claim arises particularly on the failure of the respondent to lift the goods and make payment thereafter under the invoices. This is a case of a booking done by the petitioner for the respondents and under the terms of the said booking or contract, the goods were to be lifted only against payment of advance. The goods were not lifted nor the advance amount paid. Therefore, to my mind, by reading the letter at page 75 of the petition paper book, in isolation the petitioner cannot base their case on a debt due and payable and, therefore, by addressing a statutory notice, call upon this court to raise the necessary presumption in law. This is a case of purely contractual dispute and if the petitioner is aggrieved because the required quantity was not lifted after it was arranged, then, it can recover and compensate itself the losses and 4 mss CP367 damages by way of appropriate proceedings. A winding up petition is not the mode of recovery. 6. In these circumstances, there is no merit in the argument of Shri Khandeparkar and the petition deserves to be dismissed. 7. Reliance on the decision of the Division Bench must be seen in the backdrop of the facts before the Division Bench. There, the respondent company before the Division Bench, admitted its liability but showed its negligence. It is in the admitted factual situation that the Division Bench relying upon the well settled principle that a company has ability to pay the debt but chooses not to pay it, cannot be a reason not to wind it up. In such circumstances this decision has no application to the facts of the present case. 8. The petition is dismissed but with a clarification that no observation made herein would prejudice the case of the petitioner in any proceedings for recovery of the amount stated and claimed in the petition. (S. C. DHARMADHIKARI, J.)