1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 63 OF 2011 M/s. SUPER FLOORINGS .. PETITIONER Vs. ENSEMBLE INFRASTRUCTURE INDIA LTD... RESPONDENT Mr. Ajeet A. Manwani for the petitioner Mr. Shyam Mehta with Mrs. Purnima Awasthi for the respondent CORAM: S. C. DHARMADHIKARI, J. DATED: 25/11/2011 P.C. This petition for winding up has been filed by the petitioner on the basis that the statutory notice dated 13/8/2010 sent by Registered Post Acknowledgment Due to the registered office of the respondents has not been complied with inasmuch as neither the amount demanded is paid nor the debt of the petitioner is secured or compounded to the petitioner’s satisfaction. 2. It is stated that the respondent is indebted to the petitioner in the sum 2 mss that is set out in the particulars of claim. 3. It is stated that the petitioner is carrying on business of manufacturing Mosoaic Chequered Tiles and Paver Blocks and supplying the same for various projects. Two purchases orders were placed with the petitioner by the respondent. It is stated that after setting out the details of these purchase orders, the goods came to be supplied and that were accepted and acknowledged. In fact a sum of Rs.5,18,100/- and Rs.6,37,499/- under these purchaser orders have been paid. Now, it is stated that a sum of Rs.7,52,652/- is outstanding and neither any disputes as to quality and quantity of the goods were ever raised nor the correctness of the invoices disputed. 4. My attention is invited to the affidavit-in-reply and it is submitted that for the first time it has been alleged in the affidavit that the goods supplied were not of the required quality . Reference is made to certain letters which have been addressed and particularly the e-mails, mentioned in paragraph 12 of the affidavit-in-reply. It is stated that the client of the respondent had pointed out that the goods were of inferior quality and, therefore, deducted certain sums. It is in these circumstances that the amount claimed is not payable and there is a valid and bonafide defence inasmuch as the respondent has suffered damages. Therefore, it is stated that the company 3 mss petition for winding up may not be entertained. 5. The petitioner’s advocate submitted that what the petitioner was required to provide and supply are paver blocks. The question of the paver blocks being placed at the project site is not an issue with which the petitioner is concerned. Once paver blocks have been accepted without any demur or protest, then, the packing or placing thereof is not within the purview of the contract between the parties. Therefore, any defence based on the same cannot be said to be bonafide or tenable in law. For all these reasons this petition be entertained is the submission. 6. On the other hand the respondent’s advocate points out that the inferior quality of the paver blocks was a matter which was raised during several meetings and discussions. There is a delay caused in completion of the projects because of the inferior quality of paver blocks. It is in these circumstances that the petitioner’s claim is disputed and denied. 7. Having perused the petition and the annexures thereto so also the affidavits placed on record, I am of the opinion, that as far as the purchase order that were placed they were for supply of paver blocks of the quantity stated in the purchase orders. When the purchase orders have referred to certain quantity of paver blocks and those are claimed to have been supplied and invoices were raised for the purposes of the same and which were also 4 mss cleared leaving aside a balance of Rs.7,52,652/- then, it will not be possible to straight way accept the pleas raised in the affidavit. The respondent had ample opportunity to raise any dispute in relation to the claims arising out of the quality of goods. 8. The purchase orders and the invoices are of the year 2008. Until the statutory notice and even thereafter these pleas were not raised. In such circumstances, the following order would meet the ends of justice; a) On the respondent depositing in this court a sum of Rs.5 lacks within a period of eight weeks from today, liberty is given to the petitioner to file a suit claiming the amounts stated in the statutory notice and with interest thereon. Such a suit shall be filed within a period of six weeks from the date of intimation of the deposit. b) Needless to clarify that, if the respondent fails to comply with the condition of deposit, this company petition to then stand admitted and later on to be advertised in accordance with the Companies Court Rules, 1959 on the petitioner’s advocate depositing Rs.10,000/- as advertisement charges within four weeks from the date of admission. c) Needless also to clarify that if the amount is deposited and, if no suit within the above stated period is filed, the respondent shall be entitled to withdraw the sum deposited in this court with accrued interest. If the 5 mss amount is deposited and the suit filed, then, it shall stand transferred to the credit of the suit which may be instituted by the petitioner. All contentions of both sides in relation to the claim in the suit are kept open. The order is passed only on the basis of the material at the stage of admission of winding up petition and, therefore, shall not influence any civil court or the claims and contentions based thereon before any other authority or Tribunal. (S. C. DHARMADHIKARI, J.)