1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY PETITION NO.616 OF 2009 Ramesh Dayaram Panchal ..Petitioner. Vs. M/s. CMS Computer Ltd. ..Respondent. .... Mr. Shashipal Shankar for the Petitioner. Mr. M.S. Bhandari i/b Sameer M. Bhandari for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 27th November, 2009. P.C. : 1. The claim in the Company Petition is based on the supply of a sheet laminator in pursuance of a purchase order dated 16th March, 2007 (Exhibit C to the Petition). The total cost of the machine was Rs.6,91,875/-. Half the amount was paid as advance while the balance was to be paid against a proforma invoice. The amount has not been paid. 2. The defence is that the machine was not according to specifications. According to the company, imported plates were to be installed in the machine instead of which locally sourced plates were used and instead of an assurance that the teflon tube in the laminator 2 would be replaced with a copper tube, this was not satisfactorily rectified. The company had addressed an email on 1st November, 2007 placing the grievance on record. 3. There is no disclosure in the company petition of the email of the company raising a dispute on quality. According to the Petitioner the machine was serviced during the period of warranty and the service reports are annexed to the rejoinder. Evidently considering the record as a whole, there is a dispute of quality and it cannot be inferred that there is a debt due and payable. The dispute in regard to quality was raised contemporaneously as evident from the email dated 1st November, 2007. The email is prior to the statutory notice under Sections 433 and 434 of the Companies Act dated 30th January, 2009. That apart, it has been averred in paragraph 8 of the reply that the parties had a long standing business association and save and except for the transaction in question nothing has remained due and payable in respect of any other transaction. That, it has been submitted is an indicator of the position that the company has not avoided payment 3 for a reason which is lacking in substance. The dispute between the parties would need to be resolved in a suit on the basis of evidence that will be adduced. The Company Petition is therefore not maintainable and is dismissed. *****