1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.749 OF 2008 Sanjay Pradhan ....Petitioner V/s. M/s.Archdeep Interior Pvt. Ltd. ....Respondent Mr.N.R. Pradhan i/b Wilson Varghese for the Petitioner. Dr.Birendra Saraf with Mr.Vishal Shriyan i/b Legasis Partners for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 15TH DECEMBER, 2009. P.C. :- 1. This is a petition for winding up the Respondent company on the ground that it is unable to pay its debts. 2. The entire claim is based upon an invoice dated 23.7.2005 in the sum of Rs.24,13,784/- issued by the Petitioner in respect of the works done for and material supplied by him to the Respondent company. 3. The Respondent has failed to reply to the notices demanding payment dated 12.12.2005, 12.2.2008 and 31.3.2008 and to the statutory notice dated 11.6.2008. Further part payments have been made from time to time. The last part payment was in the sum of Rs.75,000/- made on 5.1.2008. This operates the presumption against the Respondent. 4. By an order dated 10.11.2008, A.M. Khanwilkar, J. observed that in the absence of sufficient material, it would be difficult to accept the 2 Petitioner’s case that the company had admitted its liability that the company owes the said amount to the Petitioner. Time was taken to seek instructions and to place the material on record. 5. Accordingly a further affidavit dated 28.11.2008 was filed. Annexed thereto is the alleged letter dated 23.11.2006 addressed by the company stating that as it would be facing financial problems, it would be difficult for it to make payment of the entire bill and that the company would try its best to make payment in installments. The company however alleges that the letter is fabricated. 6. It is difficult in a winding up Petition to determine whether the letter dated 23.11.1006 is genuine or not. An important question which would arise is as to reason for not annexing this letter to the Petition in the first instance in view of its obvious importance. 7. In that view of the matter, the reservation expressed in the order dated 10.11.2008 by A.M. Khanwilkar, J. continues. 8. I do not for a moment suggest that the Petitioner does not have a valid claim even to the extent mentioned in the Petition. It is however difficult to entertain this Petition on the basis on which it has been filed viz. on the said bill dated 23.7.2005, in view of what is stated in the affidavit in rejoinder dated 6.10.2009 and especially paragraphs 6, 7 and 8 thereof. The Petitioner has admitted in the rejoinder that the company maintained a running account in its books of the transactions between the Petitioner and the company. He further admitted that the Respondent did make payment to the agency for supplying the material to various projects sites and that such payments were made by the company towards the material utilized at 3 the site and were reflected in the Petitioner’s account. That the Petitioner has alleged that he protested such adjustment is another matter. What is important to note is that these averments indicate the existence of an open mutual and current account having been maintained between the parties. In that view of the matter, it would not be open for the Petitioner to have made a claim of an item or even items in the account. It is settled law that a suit is not maintainable for an item in an account. It is not open to the Petitioner/Plaintiff to pick and choose an item or items in an open mutual and current account as to seek recovery thereof. 9. The averments in paragraph 7 of the rejoinder indicate that it is difficult in these circumstances to arrive at the amounts due at the foot of the account. In the affidavit in reply, the company pointed out that after 23.7.2005, the Petitioner had raised other bills aggregating to Rs. 9,60,050/-. In the said rejoinder, the Petitioner admitted the same as well as the payment in respect thereof. He denied the contention that he had failed to disclose the above facts with a view to creating a misleading record stating that he had given the entire file to his earlier advocate who appears to have due to oversight failed to incorporate these facts. 10. In the circumstances, there is a bona-fide dispute between the parties as to the accounts except to the extent of Rs.1,71,000/-. I hasten to add that I have not come to the conclusion that there is no merit in the Petitioner’s claim. However, prima-facie the Petitioner has based his claim on an erroneous basis. The observations herein therefore, would not affect the Petitioner’s claim if made in any other proceedings. 11. Mr.Saraf, the learned counsel appearing on behalf of the 4 Respondent states that the payment of the undisputed amount of Rs. 1,71,000/- shall be made on or before 31.12.2009. The statement is accepted and it is so ordered. 12. In view of the above, the Company Petition is dismissed.