JUDGMENT
Satya Brata Sinha, Actg. C.J.
1. This appeal is directed against the judgment and order dated July 28, 1998, passed by a learned single judge of this court whereby and whereunder an application for winding up of the company under Sections 433, 434, 439, 443, 448, 449 and 450 of the Companies Act, 1956, was dismissed.
2. The fact of the matter is as follows :
According to the applicant-appellant a sum of Rs. 1,33,750 together with the interest at the rate of 21 per cent, per annum from August 19, 1993, till payment was owing and due to the respondent-company. The appellant herein through its advocate served a statutory notice upon the company on March 12, 1996, stating :
“In the premises our client is entitled to realise from you the said sum of Rs. 1,33,750 being the price of 25 M. T. of muruate of potash supplied to you in terms of our clients Bill No. A-2, dated August 19, 1993.
Our client is also entitled to claim and claims interest at the rate of 21 per cent, per annum from August 19, 1993, until payment.
We have been further instructed by our said client to demand of you which we hereby do the payment of the said sum of Rs. 1,33,750 together with interest as aforesaid to our said client or to us as their attorneys and advocates and duly authorised agents in this behalf within 21 days from the date of receipt hereof failing which our client will move an application for your winding up without any further reference to you which please note.”
3. In reply to the said notice through his advocate the respondent, inter alia, while denying its liability to pay the amount forwarded a cheque dated April 17, 1996, for a sum of Rs. 43,987.50 drawn by the respondent stating :
“Your letter dated March 12, 1996, addressed to my client M/s. Andrew Yule and Co. Ltd., 8, Dr. Rajendra Prasad Sarani, Calcutta 700 001 has been delivered to me by my client with the instruction to reply as under :
Accepting your client’s offer made on September 27, 1991, in response to my client’s Tender Enquiry No. TED/01/92/1, dated September 17, 1991 and modified by your client vide letter dated October 30, 1991, my client on or about November 15, 1991, had placed an order on your client for supply of 130 M.T. of murate of potash (MOP) at the price of Rs. 1759.50 per M.T. (inclusive of sales tax) with the instruction to deliver the said quantity of MOP at my client’s Khowang Tea Estate. Your client duly received the said order.
In execution of the said order your client made supplies from time to time and it later transpired that 25 M.T. was supplied in excess and due to defect in documentation at your end the excess supply could not be detected at the time the supply was made. However, after the confusion was finally clarified on or about August 19, 1992, your client was advised by my client to raise bills for this excess supplies of 25 M. T. MOP so as to enable my client to make the payment as the supplies were already in the consumption process in the meantime. It appeared that with effect from August 25, 1992, the restrictions on the sale price of MOP was removed and the price was revised at Rs. 6,600 per M.T. Taking advantage of this upward revision of price your client demanded the price of the excess supply of 25 M.T, at this enhanced rate of Rs. 6,600 per M.T. and declined to accept the contractual rate of Rs. 1759.50 per M.T. which was agreed upon by and between the parties. Your client’s demand of the revised price for the supplies already made prior to the rate revision was illegal and wrongful and my client could not concede to this unlawful claim. Time and again my client advised your client’s representative to submit appropriate bill for the excess supply of 25 M.T. at the contractual rate but, instead, your client ultimately chose to serve the legal notice through you. I have been instructed by my client to communicate to your client through you that my client has no liability to pay your client any amount in excess of the agreed price i.e. Rs. 1759.50 M.T. for the excess supplies (25 M.T.) made. However, a cheque for Rs. 43,987.50 (Rs. 1759.50 per M.T. x 25 M.T.) drawn by my client in favour of your client towards payment of the excess supplies towards payment of your client’s lawful dues for the aforesaid excess supply of 25 M.T. is enclosed.
It will appear from the facts aforestated that it was due to the laches on their part your client could not take the payment in time and your client’s demand as made vide your notice under reply not only unlawful, illegal, unwarranted but also amount to unjust enrichment.
In spite of the position as clarified herein if your client proceed with the threatened legal action they will be doing so at their own risk and peril and my client shall hold your client responsible and liable for all cost and consequences, which your client may be advised to note.”
4. In such situation the aforementioned application was filed.
5. The learned trial judge haying regard to the aforementioned stand taken by the respondent herein, inter alia, held that the question of payment of any amount at the enhanced rate for the supply of goods does not arise.
6. The question as to whether the appellant herein was entitled to an enhanced amount than the alleged contract amount would be a disputed question of fact. But having regard to the conduct of the respondent in accepting its liability towards the excess supplies which according to the respondent at the contractual rate would amount to acknowledgement, at the least, to the extent of Rs. 43,987.50 and, thus, we do not find any reason why the aforementioned application could not have been admitted for the said amount.
7. Learned counsel appearing on behalf of the respondent, inter alia, submitted that the application for winding up has to be allowed or dismissed as a whole.
8. The said submission cannot be accepted in the facts and circumstances of this case inasmuch as even a suit can be decreed on the basis of admission made by the defendant although the plaintiff may fail to prove its claim. See Firm Sriniwas Ram Kumar v. Mahabir Prasad, .
9. In the winding up of company, the court may not be a debt collecting court but in view of the decision in Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp Cas 456 (SC), it is evident that the dispute as to the debt has to be a bona fide one.
10. In Pradeshiya Industrial and Investment Corporation of Uttar Pradesh v. North India Petrochemicals ltd. , the apex court held that any order passed under section 433(e) of the Companies Act is discretionary. Although such a power is discretionary in our opinion exercise of such discretion can neither be arbitrary nor fanciful.
11. In the instant case the learned trial judge has posed a wrong question and, thus, misdirected himself in law. The learned trial judge, keeping in view the fact that the respondent herein has admitted a part of the claim and had in fact forwarded a cheque for the sum of Rs. 43,987.50 ought to have admitted the petition for the aforementioned amount. After all justice must be done to the parties and if even despite admission, the respondent fails and/or neglects to pay the amount, an appropriate action can be taken by the court within the framework of law.
12. For the reasons aforementioned this appeal is allowed in part and the order under appeal is modified as under :
Application for winding up is admitted for the said sum of Rs. 43,987.50. The respondent is directed to pay the said amount to the appellant herein within one month from date and upon the respondent making the said payment the company petition shall remain stayed sine die. However, if the respondent defaults in making the said payment within the stipulated time advertisements in two newspapers, in accordance with law, shall be issued as may be directed by the learned trial judge. So far as the balance amount is concerned the parties are relegated to the suit.
13. The appeal is accordingly disposed of but in the facts and circumstances of the case there will be no order as to costs.
M.H.S. Ansari, J.
14. I agree.