1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY PETITION NO.84 OF 2009 Sarladevi D. Changiowala ..Petitioner. Vs. M/s. Fraiser Pharma Chem Ltd. ..Respondent. ..... Ms Seema Gupta i/b Ashok Saraogi for the Petitioner. Mr. P. Sarwankar i/b M/s. Sarwankar & Co. for the Respondent. ..... CORAM : DR. D.Y. CHANDRACHUD, J. 6th November, 2009. P.C. : 1. The claim which forms the basis of the Company Petition for winding up under Section 434 of the Companies Act, 1956 is an amount of Rs.45,000/- alleged to be due to the Petitioner on account of goods sold, supplied and delivered. An affidavit in reply has been filed. 2. From the purchase order which is annexed to the Company Petition it would appear that the order for the supply of goods was 2 not placed by the Respondent but by an entity by the name of Fraiser Herbals. Delivery was to be made to the Petitioner. In the affidavit in reply it has been stated that the Petitioner is a distributor of products manufactured by Fraiser Herbals which is a partnership firm. The order was placed by the partnership firm and the goods, which consisted of certain polyester bags were to be distributed by the Petitioner to doctors and customers for promotion of the sales of the partnership firm. The company admits that the goods were delivered at the address of the company. However, the purchase order mentions that all the documents relating to the transaction would be sent to the factory address of the partnership firm at Palghar. Hence, it has been submitted in the reply that there was no reason to send the invoice to the address of the Petitioner and that as a matter of fact, the invoice was never received. It has also been stated that the goods were found to be of inferior quality and were returned to the Petitioner on the instructions of the partnership firm. These averments which have been contained in the affidavit in reply have not been specifically traversed in the rejoinder dated 20th August, 3 2009. In these circumstances, the question as to whether the Petitioner is primarily liable or whether the Petitioner was only acting as a distributor of the partnership firm which had placed the order for supply would raise a triable issue. The disputed questions which arise in the Company Petition cannot be resolved without evidence being adduced at the trial of the suit. The Petitioner is therefore relegated to pursue the ordinary remedies available under the law. The Petition for winding up is misconceived. The Petition is accordingly dismissed. *****