1998 (10) TMI 432

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....t"), for the winding up of the respondent-company, Messrs. Himachal Pradesh Horticulture Produce, Marketing and Processing Corporation Ltd. The averments made in the petition, briefly stated, are these. The petitioner-company in response to the notice inviting tenders issued by the respondent-company entered into an agreement for the supply of 4,60,000 telescopic cartons to the respondent-company. The delivery was to be made during the period June 20, to September 30, 1990, as per the schedule fixed in the agreement. The entire supply was to be completed before September 30, 1990. At the time of the agreement a sum of Rs. 1,46,700 was deposited by the petitioner-company with the respondent-company as security. There was a stipulation ....

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....solvent and unable to discharge its debts and to pay the dues of the petitioner-company. The financial position of the respondent-company is wholly unsound. The accumulated losses up to March 31, 1989, as per the audited accounts of the respondent-company are Rs. 14,52,80,536. Such accumulated losses up to the end of the financial year 1989-90 are to the tune of Rs. 15,63,54,000. It has further been averred that as against the fixed and current assets to the tune of Rs. 1,776.37 lakhs, the respondent-company has a liability, in the form of borrowings and third party liabilities, to the extent of Rs. 2,580 lakhs. The respondent-company resisted the petition for winding up. It was pleaded that since the petitioner-company failed to supply ....

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.... the circumstances of the case is bona fide and is likely to succeed in a civil court, that would constitute sufficient reasons for the court to reject the petition, relegating the parties to the civil court. The dispute between the parties in the present case revolves around a disputed question as to whether the amount of security deposited by the petitioner-company with the respondent-company could be and has been validly forfeited by the respondent-company. Such a dispute cannot possibly be decided in the present summary proceedings. The same can be appropriately decided in a properly framed suit. The defence raised by the respondent-company on the face of it appears to be bona fide and such defence is likely to succeed. Therefore, it....