IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION No.739 of 2009 M/s. Maze Cards (I) Pvt Ltd. ..Petitioners Vs. M/s. CMS Ident Pvt Ltd/ ..Respondents Mr. Shashipal Shankar for the Petitioners Mr. M. S. Bhandari i/b Mr. Sameer M. Bhandari for the Respondents CORAM: DR.D.Y.CHANDRACHUD, J DATE : 9TH DECEMBER, 2009 P.C. 1. The Company Petition for winding up arises on account of an alleged non payment of bills in respect of goods sold, supplied and delivered. In pursuance of a purchase order dated 15th January 2009, the Petitioner was to supply and deliver Vinyl Core Film of a particular contractual stipulation. According to the Petitioner, the material was supplied under a delivery challan dated 20th January 2009. An invoice was raised in the total amount of Rs. 7,14,629/-. A statutory notice of winding up was addressed under Sections 433 and 434 of the Companies Act., 1956, by the Petitioner on 9th July 2009. In its reply dated 23rd July 2009, the Company set up two defences, Firstly, a representation was made to the Company that the material which was supplied has been manufactured in Germany while it has been actually manufactured in China and the material is hence defective; Secondly, on 2nd June 2009 the General Manager of the Petitioner visited the factory of the Respondent to discuss the dispute about the payment. During the course of the visit, the Senior Vice President of the Company informed the representative of the Petitioner that the material supplied did not meet the specifications of quality and quantity stipulated in the purchase order and the representative was asked to replace or take back the material. It was contended that the representative of the Petitioner stated that he would revert back after taking instructions from the management of the Petitioner but there was no response thereafter. The defence in the Affidavit in reply, follows the reply to the statutory notice. A rejoinder has been filed by the Petitioner for the purpose of establishing that the Petitioner had in fact imported material from Germany under invoices dated 30th April 2008 and 23rd September 2008. A packing list has also been annexed. 2. Prima facie, on the basis of the material on record, there is a bonafide dispute between the parties. There is no debt due and payable. The first circumstance which must weigh with the Court is the statement contained in the reply to the statutory notice of what transpired at the meeting that was held on 2nd June 2009. That statement which is to be found in the letter dated 23rd July 2009 of the Company has not been controverted. This contemporaneous record indicates prima facie that there was a dispute about the quality of the goods supplied and the Petitioner was informed that the goods supplied were not acceptable. There is hence a bona fide defence to the claim which forms the basis of the Petition. Though the Petitioner has relied upon some material to show that it had imported goods from Germany, the question as to whether the supplies that were effected to the Company were drawn from the same material that was imported from Germany, is a matter, which would require evidence. The Company has in its reply stated that there were dealings between the parties to the extent of Rupees Fifty lacs per annum and that at no stage earlier, has there been any dispute about non payment. 3. In the circumstances, the Petitioner would have to be relegated to the remedy of filing a suit for the recovery of its dues. This Court on the basis of the material on the record cannot come to the conclusion that there is a debt due and payable. 4. The Company Petition shall accordingly stand dismissed. (Dr. D.Y.Chandrachud, J)