1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.119 OF 2010 Graphtone (India) P.Ltd. .. Petitioners Vs. Mercury Intimate Ltd. ... Respondents Mr.Chirag Shah i/b M/s.Singanporia and Dalvi for the petitioners Ms.M.D.S.Sinh for the respondents CORAM : S.J. VAZIFDAR, J. DATED : 19th JULY, 2010 P.C.: 1. This is a petition for winding up the respondent company inter alia on the ground that it is unable to pay its debts. 2. According to the petitioners, the respondents are indebted to it in the sum which today exceeds Rs.15.0 lacs. 3. The petitioners claim arises in respect of the work done and goods ’ supplied by it to the respondents. There is no dispute that the material was supplied by the petitioners to the respondents. The dispute raised is regarding the quality. This is in respect of the 2 second bill which is in the sum of Rs.14.0 lacs. The material was supplied pursuant to the invoice dated 02.10.2008. The correspondence was raised for the first time only after a period of about 6 months in April 2009. As per the delivery challan, any dispute as to the quality was to be raised within 24 hours. 4. Initially, when payment was demanded, the dispute raised was regarding the costing. Queries were raised about the quality. There was no direct allegation that the quality was not as per the prescribed requirements. However, reliance is placed on an email message dated 23.04.2009 wherein it is stated that grievances had been raised regarding the quality orally ever since the material was received. The grievance pertain to the printing quality, the use of excess glue, and quality of paper used. It is further stated that the discussions continued almost since the beginning as regards these grievances. 5. The grievances, if any ought to have been raised within a reasonable time. Moreover, the respondents ought to have rejected the material if it was defective within a reasonable time. The first evidence on record of such rejection is only by the said email dated 23.04.09 which is after about 8 months. Prima facie, it appears that the material ought to have been rejected much earlier. 3 6. A dispute is also raised as to the costing. Admittedly, however, even if the amounts are adjusted, as contended by the respondents, it would reduce the claim at the highest by Rs.2.0 lacs. 7. Considering the facts and circumstances of the case, the following order is passed: (i) The Company is directed to deposit in this Court a sum of Rs.5 lacs within a period of twelve weeks from today. (ii) Upon the amount being deposited, the same shall be invested in a nationalized bank initially for a period of one year and thereafter for like periods of one year each. (iii) In the event of the amount being so deposited and in the event of the petitioners filing a suit within twelve weeks from the date of the petitioners advocate being informed of the same in writing, the ’ amount shall stand transferred to the credit of that suit. The petitioners shall be at liberty to make an application in the suit for withdrawal of the amount. (iv) In the event of the suit not being filed as aforesaid, the petition shall stand dismissed and the amount with interest thereon shall be refunded to the respondent-Company. (v) In case of failure on the part of the Company to deposit the amount as aforesaid, the petition shall stand admitted and to be advertised in Free Press Journal, Maharashtra Times and Maharashtra 4 Government Gazette. The petitioner to deposit an amount of Rs. 10,000/- with the Prothonotary and Senior Master of this Court within four weeks from the date of default. Ms.M.D.S.Sinh waives service on behalf of the respondent.