1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY PETITION NO.675 OF 2009 M/s. Jayant Furnishers Pvt. Ltd. ..Petitioner. Vs. M/s. Aromatan Cosmetics Private Limited ..Respondent. .... Mr. Rakesh D. Dave for the Petitioner. Mr. A.J. Rizvi with Mr. B. Palai for the Respondent. .... CORAM : DR. D.Y. CHANDRACHUD, J. 6th November, 2009. P.C. : 1. The claim in the Company Petition for winding up is based on the supply of diverse items of furniture by the Petitioner to the Respondent. The Petitioner raised invoices, a summary of which is to be found in Exhibit AA to the Petition. The twenty five invoices in question are between 28th May, 2007 and 19th February, 2008 and are of a total value of Rs.33,12,933/-. The Respondent made a total payment of Rs.25 lacs between 7th May, 2007 and 15th May, 2007. According to the Petitioner there was a balance outstanding of Rs. 2 8,12,933/-. A statutory notice of winding up was addressed on 26th August, 2008 to which there was a reply dated 6th September, 2008. The defence in the reply was that the Respondents had intimated the Petitioner between July 2007 and June 2008 through correspondence and telephonically about discrepancies in the quality and size of the furniture but, these complaints were ignored. 2. An affidavit in reply has been filed to the petition for winding up. The Respondent has annexed to the reply copies of letters dated 7th July, 2007, 31st July, 2007, 1st September, 2007, 22nd October, 2007, 27th November, 2007 and 18th June, 2008. All the letters on which reliance has been placed raise a dispute on the quality of the goods supplied. The contention of counsel appearing on behalf of the Petitioner is that deliveries were effected in pursuance of the invoices that were raised between May 2007 and February 2008. According to the counsel, the Respondent has not furnished inspection of any receipts of acknowledgment of the letters alleged to have been addressed by the Respondent to the Petitioner. 3 However, during the course of the hearing counsel appearing on behalf of the Respondent has produced before the Court an acknowledgment of the postal packet sent by Speed-post containing the Respondent’s letter dated 18th June, 2008 to the Petitioner. The letter dated 18th June, 2008 records that the furniture supplied was not in conformity with the specifications / dimensions mentioned in the purchase order dated 13th March, 2007 and that though the discrepancies were brought to the attention of the Petitioner repeatedly, the Petitioner had, inspite of promises, failed to rectify the defects. The quality of the “running channels” in the wall units and of the glass supplied has been specifically referred to in the letter. 3. On the basis of the record, it cannot be held that there is a debt due and payable by the Respondent to the Petitioner. Though it is true that at this stage, the Respondent is not in possession of receipts of acknowledgment in respect of five letters addressed between 7th July and 27th November, 2007 (Exhibits 1 to 5 to the reply), an acknowledgment is available in respect of the letter dated 4 18th June, 2008 raising a dispute in respect of the quality of the goods supplied. There is evidently a dispute between the parties which would raise triable issues which cannot be resolved in a company petition for winding up. Evidence would have to be adduced at the trial of the suit. The Petition for winding up is, in the circumstances, not maintainable. Before concluding it may also be mentioned that one of the submissions of the learned counsel appearing on behalf of the company is that though in the statutory notice the claim for interest is at 18% per annum, in paragraph 14 of the petition interest has been claimed at 21% per annum. The petition shall accordingly stand dismissed. *****