1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.690 OF 2008 Super Tiles & Marbles Pvt.Ltd. ..Petitioner V/s. Atlanta Ltd. ..Respondent. Mr.C.D.Patel i/b Kanga & co. for Petitioner. Mr.M.M.Vashi for respodnent. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : OCTOBER 16, 2008. : OCTOBER 16, 2008. : OCTOBER 16, 2008. P.C. P.C. P.C. : : : 1. Heard Counsel for the parties. 2. Respondent intended to file reply affidavit. However, the same has not been presented in terms of last opportunity given by this Court on 18th September, 2008. As there is no formal application for condonation of delay, reply affidavit is not taken on record. The matter proceeds for admission on the basis of documents already placed on record alongwith the Petition by the Petitioner. 3. According to the Petitioner, the Respondent has admitted liability atleast to the extent of Rs.8,68,499/-, as is evident from the Communication dated 26th April, 2007 sent by the Respondent to the 2 Petitioner. The argument, though attractive at the first blush, will have to be rejected. 4. From the correspondence exchanged between the Petitioner and the Respondent at least from February, 2007, it clearly indicates that there has been dispute about quality of work completed by the Petitioner in terms of the Agreement dated 8th November, 2005. In the communication sent by the Petitioner it is stated that the defect in the work was attributable to the Respondent, amongst others that the base prepared by the Respondent was not proper. This assertion of the Petitioner is completely contrary to the terms of Agreement dated 8th November, 2005. As per the Agreement, it is the Petitioner, who was expected to prepare base for installation of Paver Blocks. The Respondent was responsible only to provide raw material, water and electricity. 5. On perusal of the correspondence exchanged between the parties, it is noticed that grievance of the Petitioner was that the base was not properly prepared by the Respondent, which has resulted in bad workmanship of the assigned work. However, when the Respondent asserted that the base was properly completed, the Petitioner then turned around and 3 complained about quality of raw material supplied by the Respondent. Even that claim of the Petitioner has been disputed by the Respondent. 6. Suffice it to observe that from the communication exchanged between the parties, it is noticed that there has been dispute between the parties about quality of work. Sofar as finished work is concerned, both parties are ad-idem that the same is not in accordance with the stipulated specifications. The question whether the Petitioner or the Respondent was responsible for such bad quality of work is a matter, which is a disputed question and cannot be resolved in the present proceedings. The fact that the Respondent has accepted liability to pay Rs.8,68,499/- is in relation to the retention money set apart from the respective invoices submitted by the Petitioner. The Respondent is entitled to retain the said amount till the work is finished as per the specifications and required quality. 7. Suffice it to observe that all these matters will have to be examined in appropriate proceedings and cannot be gone into in the present action which is for winding up of the Respondent company. Accordingly, this Petition would fail. The same is 4 dismissed with liberty to the Petitioner to pursue appropriate remedy, as may be permissible in law. All questions in that behalf are left open. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)