1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY PETITION NO.582 OF 2009 Lucid Prints. ...Petitioner. Vs. M/s. R.R. Oomerbhoy Pvt. Ltd. ...Respondent. .... Mr. B.B.Parekh with Mr. A.W. Ansari for the Petitioner. Mr. Rahul Narichania and Ms.Melina Colaco i/b. Desai & Desai Carrimjee & Mulla for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. November 26, 2009. P.C. The claim in the Company Petition for winding up is on the basis of unpaid invoices for goods sold, supplied and delivered. According to the Petitioner, in pursuance of a purchase order issued by the Company, the Petitioner supplied carry bags, booklets and letters between February and June 2008. An amount of Rs.22,936/- was paid by the Company on 18th September 2008 leaving allegedly a balance of Rs.3,59,023/-. A statutory notice under Sections 433 and 434 of the Companies' Act, 1956 was addressed on 25th March 2009 to which there was a reply dated 13th April 2009. 2 Counsel appearing on behalf of the Petitioner submitted that a dispute in regard to the quality of goods supplied was sought to be raised for the first time in pursuance of the statutory notice on 13th April 2009. This submission cannot be accepted on the basis of the documentary material on the record. In the affidavit in reply, the Company has annexed at Exh.2, a communication dated 20th May 2008. The attachment thereto is a letter of the Manager, Business Development of the Petitioner to the Company. The letter, as a matter of fact, records that the Petitioner had been informed after the material had been despatched that the lot had been rejected. Moreover, the Petitioner's letter dated 7th February 2009 (Exh.I to the Petition) also adverted to certain disputes in regard to quality which the Petitioner termed as ‘irrelevant and belated’. Prima facie, in view of the disputes, it cannot be held that there is a debt due and payable. The defence in paragraph 6(g) of the reply is that the quality of the goods supplied was not in accordance with the agreed standard. Counsel appearing on behalf of the Petitioner submitted that two contrary explanations have been furnished by the Company for 3 effecting part payment of Rs.22,926; the first being the reply to the statutory notice and the second in paragraph 6(c) of the reply. Be that as it may, it would appear that even prior to the issuance of a notice of winding up, there were certain disputes as regards the quality of goods supplied. In the circumstances, it cannot be held that there is a debt due and payable. The Petitioner will have be relegated to the remedy of filing a suit for the recovery of its dues. During the course of the hearing, Counsel appearing on behalf of the Company has also stated that the entire quantity of material is still available in the godown of the Company since it has not been used and the Petitioner is at liberty to remove the material. For the aforesaid reasons, the Company Petition shall have to be dismissed and is accordingly dismissed. ....