1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1033 OF 2003 IN COMPANY PETITION NO.859 OF 2002 Karuna Cables Ltd. ...Appellant vs. Pankaj Metals Ltd. ...Respondent --- Mr.Naushad Engineer with Mr.P.Rajguru i/b. PDS Legal, for Appellant. Mr.Kiran Nikam i/b. Mr.S.Ashwinikumar & Co., for Respondent. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 17th January, 2009. P.C.:- 1. By this appeal, the appellant challenges the order dated 7.3.2003 passed in Company petition 2 no.859 of 2002. The present appellant was respondent in that petition. By the order impugned, the learned Single Judge has made conditional order for admission of the petition. The learned Single Judge has directed the appellant-Company to deposit an amount of Rs.65,43,214/- in this Court within six weeks from the date of the order, and its failure will result in admission of the petition for winding of respondent-company. The company petition was filed on the allegation that an amount of Rs.1,28,03,790/- was payable by the respondent to the petitioner, and that without having any bonafide defence available the respondent is not paying that amount. The learned Single Judge found that it can be said that there is bonafide defence available to the respondent in respect of the amount of Rs.25,63,634/-, but there is no bonafide defence available to the Company in relation to the balance amount of Rs.65,43,214/-, therefore, he directed the company to deposit that amount, and failure of the Company, as observed above, will result in admission of the petition. 2. The appellant has filed an affidavit in this 3 appeal pointing out that the entire amount that was payable by the original respondent-appellant to the original petitioner-respondent has been paid of. The learned Counsel appearing for appellant placed before us xerox copy of order dated 8.1.2004 passed by the learned Single Judge of this Court in summons for judgment no.557 of 2002 in Summary suit no.2004 of 2002, which is taken on record and marked “X” for identification. Perusal of the order at “X” shows that the order was passed in summary suit filed by the present respondent to recover the amount which was subject matter of the company petition. In that suit, summons for judgment was taken out by the respondent. One of the defence raised by the appellant-company was that the entire amount has been paid off. The learned Single Judge after hearing both the sides found that there is substance in the defence taken by the defendant that the entire amount has been paid of and there is nothing due from the appellant-original defendant to the respondent- original plaintiff. The learned Counsel appearing for appellant stated before us that this order, a copy of which is at “X”, has become final between the parties 4 inasmuch as it has not been challenged by the respondent. This statement has not been disputed by the learned Counsel appearing for respondent. In our opinion, in view of the affidavit filed in the appeal and the order passed by the learned Single Judge, prima facie accepting the case of the appellant- company that the entire dues have been paid off by the company, it can be said that the appellant- company has bonafide defence available in relation to the entire claim made by the respondent. In this view of the matter, therefore, in our opinion, the order impugned in the appeal will have to be set aside. Accordingly, the appeal succeeds. The order impugned in the appeal is set aside. No order as to costs. (D.K.DESHMUKH, J.) (A.A.SAYED,J.) ---