((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.745 OF 2007 IDMC Limited and another Petitioner versus Premier Transport Limited Respondent Shri Rahul Narichania with Rahul Mehta i/by KMC Legal Venture for petitioner. Shri Anil D’Souza with Siddesh Bhole for respondent. CORAM : A.M.KHANWILKAR, J. DATE : 03rd March 2008 PC : 1. Heard counsel for the parties. Insofar as the first question referred to in the order dated 01st February 2008 is concerned, the same has become a non issue in view of the order passed on 15th February 2008 wherein both the sides have accepted the fact that the factual matrix stated in the order dated 1st February 2008 is incorrect. Whereas, the petitioner no.2 had insured the goods for and on behalf of petitioner no.1 and had no lis with the respondent company. If those are the admitted facts, there is no difficulty in accepting the stand of the petitioners that they are jointly and severally entitled to proceed for recovery of amount of ((-2-)) MST loss suffered by them on account of act of commission and omission of the respondent in delivery of the goods in question. Thus understood, the petitioners are entitled to pursue the remedy against the respondents together. 2. However, the petitioners have one more hindrance to cross as expounded in the decision of Our High Court in the case of ICICI Lombard General Insurance Company Vs/ Parasmani Roadlines Pvt.Ltd. reported in 2007(4)-Bom.C.R.-311. The exposition in the said decision applies on all fours to the case on hand; for which reason it necessarily follows that the remedy of winding up is not available to the petitioners having regard to the bona fide dispute raised by the respondent. Indeed, the petitioners will be free to pursue their civil action before the appropriate Court for recovery of the amount against the respondent which will proceed on its own merits in accordance with law. 3. There is another aspect which, in my view, would require rejection of this petition. Indisputably, the date of loss is stated to be 16th February 2004; whereas, the present company ((-3-)) MST petition has been instituted on 6th September 2007 founded on the claim which is clearly barred by Law of Limitation. I have my own doubts about the correctness of the submission made on behalf of the petitioners that the present petition cannot be thrown out on the ground of claim being barred by limitation as the petitioners have already instituted a suit before the Court of competent jurisdiction for recovery of the amount in question within period of limitation. Be that as it may, having regard to the decision of our High Court referred to above, the petition for winding-up of the respondent company cannot be entertained. 4. At this stage the counsel for the petitioners on instructions submits that the petitioners may be permitted to withdraw this petition without prejudice to their rights and contentions available in respect of pending civil action between the parties. In the circumstances, dismissed as withdrawn with liberty to the petitioners to pursue their claim against the respondents in the pending civil suit which will be decided on its own merits in accordance with law. ((-4-)) MST (A.M.KHANWILKAR, J.)