J. K. Mehra ( 1 ) THIS is a petition filed by the petitioner againstthe respondent company alleging that the respondent company is indebted tothe petitioner to the tune of Rs. 3,15,165. 00which the respondent companyfailed to pay despite a notice of demand dated 25/03/1988 undersection 434 of the Companies Act having been served on the company. It isfurther pointed out that the company kept on shifting its Registered Officewithout filing any return with the Registrar of Companies and that a noticewas ultimately served on 21/05/1988. Despite such service the respondentcompany did not pay the dues of the petitioner nor took any steps tocompound the dues. ( 2 ) THE petition was resisted on various ground which have beenrefuted by the petitioner in the rejoinder. The respondent has alleged thatthere exists a bonafide dispute about the claim of the petitioner. Therespondent while disputing the liability and delivery of goods the price whereof is claimed by the petitioner has taken the plea that the respondentreceived licence to manufacture pharmaceuticals by the Drug Control andlicencing Authority, Delhi only on 13. 5. 1986 whereas all the bills on thebasis whereof the present action has been initiated relate to period prior tomay 1986. The respondent has denied having been supplied any basic drugsby the Manufacturer through the petitioner. This plea, as would appearfrom what is noticed hereinafter is without any merit. The respondent hasalso raised a plea that the notice was fabricated and no statutory notice hadbeen served. However, this plea at the time of arguments was given up bythe Counsel for the respondent on being confronted with the A. D. card. Inany event. I must notice that this plea on the face of the record is malafideand false. Another objection raised by the respondent is that the letter ofbalance confirmation signed by Mr. A. K. Racharya is fabricated inasmuchas the said letter was given on 26/10/1985 by Mr. A. K. . Racharaya inhis capacity as sole propreitor of Richa Laboratories which is alleged to behis sole propreitorship concern. It is alleged that the date on this letter hasbeen changed from 26. 10. 85 to 26. 12. 85 only to bring the petitioner s claimwithin the period of limitation, with regard to the stamp of the respondentcompany, Counsel stated that the petitioner Mr. It is alleged that the date on this letter hasbeen changed from 26. 10. 85 to 26. 12. 85 only to bring the petitioner s claimwithin the period of limitation, with regard to the stamp of the respondentcompany, Counsel stated that the petitioner Mr. Vijay Kumar Jain, proprietorof v. Parkash and Company was also one of the Directors of the respondentand in that capacity he had in his possession a rubber stamp of the companyand such stamp was affixed by Mr, Jain himself after interpolating the datethereon. I may note that although this letter is being attributed to the soleproprietorship concern which is alleged to be different from the Respondentcompany, yet the carbon copy of the original was produced by therespondent s Counsel from the respondents custody. Furthermore, noexplanation is forthcoming as to how the respondent was in possession of thecarbon copy of the letter dated 26. 12. 85 when according to them this letterdid not pertain to the company and had been forged and fabricated by thepetitioner by altering the date and also by affixing the rubber stamp of thecompany. It was further stated that the proprietory concern was changed to apartnership and the assets and liabilities of the partnership were taken overby the respondent Company. The petitioner has also refuted the plea ofinterpolating the letter confirming the balance. It was pointed out that if theletter had been signed in October 1985 the balance amount would have beenonly Rs. 1. 75,165. 00which was the debit balance upto 26/10/1985. The amount of Rs. 3,50. 000. 00 was the debit balance on 26. 12. 85 only, in thelight of this I feel that the correction of date, if any, must have been carriedout by Mr. Racharya himself. ( 3 ) NEXT it was contended that the petitioner has already instituted asuit for the recovery of the amount referred to in the,present petition and assuch that matter will be done into on its own merits after recording evidence. For that reason also, this Hon ble Court should not proceed with thispetition. ( 4 ) THE petitioner has filed with the rejoinder photocopies of anumber of documents including the sales tax declarations, all signed bymr. A. K. Racharya who is admittedly the Managing Director of the respondent Company. These sales tax declarations also bear the rubber stampof the respondent. The plea raised by respondent was that all thesewere signed by Mr. ( 4 ) THE petitioner has filed with the rejoinder photocopies of anumber of documents including the sales tax declarations, all signed bymr. A. K. Racharya who is admittedly the Managing Director of the respondent Company. These sales tax declarations also bear the rubber stampof the respondent. The plea raised by respondent was that all thesewere signed by Mr. Racharya in the name of his own proprietorship concern and not on behalf of the respondent Company and rubberstamps were affixed, by the petitioner since Mr. Jain happened to be inpossession thereof. The respondent has alleged that those declarations werealso fabricated, but no explanation is forthcoming about the reasons formr. A. K. Racharya s signatures, which are not disputed, on those declaration slips. The respondent has not produced in the Court their sales taxregistration Certificate nor have they got produced the record of the soleproprietorship to sustain their allegations that the sales tax declarationsrelated to the poprietorship concern. Production of the record of the allegedproprietorship would have been no problem since the alleged proprietor andmanaging Director of respondent are the same person, In para 8 of thereply the respondent has stated that it has been lying closed since 11. 7. 86which clearly indicates that the Company had not been carrying on anybusiness since that date. ( 5 ) MY attention has been drawn to an agreement between all thedirectors including Mr. A. K. Racharya and Promotors of the respondentcompany dated 30/04/1985. Clause 3 thereof provides that all the assetsand liabilities of M/s. Richa Laboratories, partnership concern of which thefirst (i. e. Mr. A. K. Racharya) and second party (i. e. Mr. Salil Racharya) arethe partners shall be transferred to the said company M/s. Richa Laboratories Pvt Ltd. In fact from the said agreement it appears that M/s Richa Laboratories was a partnership firm of which A. K. . Racharya and Salil Racharya werethe partners. There is no evidence placed on record by the respondent toshow that apart from the partnership firm and the respondent there existedanother business concern by the same name i. e. , Richa Laboratories ofwhich A. K. Racharya was the sole proprietor. Even a copy of the Sales Taxregistration Certificate has not been produced to support the story ofmr. A. K. Racharya being the sole proprietor of Richa Laboratories whoseassets and liabilities had not been taken over by the respondent Company. Even a copy of the Sales Taxregistration Certificate has not been produced to support the story ofmr. A. K. Racharya being the sole proprietor of Richa Laboratories whoseassets and liabilities had not been taken over by the respondent Company. The petitioner in his rejoinder has mentioned that the respondent Companyhad earlier a licence to manufacture pharmaceuticals from the Drug Controller. Delhi for its premises which was at that time located at E-249/10 Okhlaindustrial Area, Phase-11, New Delhi. No further effort was made ordocuments produced to show that the drug licence for the said premisesrelated only to a proprietorship and not the respondent Company as referredto in para 2 of the rejoinder. The petitioner has further filed a letter fromthe manufacturer i. e. Ranbaxy Laboratories Limited wherein they have listedall the bills which are the subject-matter of the claim of the petitioneragainst the respondent stating therein, inter-alia, as under :- "this is to certify that we have received payment from you againstour various invoices as per the details given for supplies madethrough you to M/s. Richa Laboratories Pvt. Ltd. . . ". ( 6 ) THE petitioner has also filed a copy of its own statement of accountshowing the debits relating to the aforesaid bills to the manufacturers anddebits have been raised after payment against the respondent after paymentto the manufacturer. They have also filed a copy of the relevant accountshowing the balance as on 1. 4. 87 in the account books and the balance sheetof the petitioner relating to the respondent Company showing a debit balanceof Rs. 3,15,165. 00. The arguments were postponed to enable the respondentto obtain from M/s Ranbaxy Laboratories Limited a Certificate showing asto where the goods were actually delivered to sustain their allegation thatthey never received any goods from Ranbaxy Laboratories Ltd. hut no suchcertificate was produced. ( 7 ) IN the light of this discussion and also keeping in view the factthat the respondent has been lying closed since 11. 7. 86 and the did notrespond to the notice of demand under Section 434 of the Companies Actthere does arise a presumption in favour of the petitioner and against therespondent that the respondent is unable to pay its debts. Only question thatremains to be seen is, if filing of the suit by the petitioner would non-suithim in the present case. I cannot agree with this contention of the Respondent. Only question thatremains to be seen is, if filing of the suit by the petitioner would non-suithim in the present case. I cannot agree with this contention of the Respondent. This question was duly considered in a case reported as 62 (1987)CC 239 wherein it was held that the proceedings for winding up will not beinvalidated if a suit is filed by the petitioner by way of abundant caution tosave the claim getting barred by limitation, in the present case also the suitappears to have been filed by way of abundant caution to save the limitationfrom running out. ( 8 ) THE respondent placed reliance on the judgment of this Courtreported as 1990 (1) Company Law Journal 289 wherein it was held thatwinding up proceedings are no substitute for proceedings for recovery. Inthat case it was in the light of a substantial defence raised by the Companythat the Court was pleased to dismiss the Company petition. While takingthe above view they left the petitioning creditor free to seek his remedy byway of a Civil Suit. In the present case I am not in a position to agree withthe respondent that there exists a bona fide dispute. The petitioner hashowever not produced any agreement between the petitioner and therespondent to pay interest on the outstanding balance nor has any evidencebeen produced wherefrom such a liability could be inferred. In the circumstances, in the absence of evidence it cannot be concluded that the petitionerwas entitled to charge interest at the rate of 18% p. a. as alleged. ( 9 ) IN the light of the above discussion. I admit this petition anddirect that one citation each be published in "statesman". "nav Bharattimes" and Delhi Gazette for 27/09/1993, with a further directionthat in case the respondent pays the amount due minus the interest claimedwithin 2 months from the date of this judgment, the citations shall not bepublished. In case the principal amount due is paid, this petition shall standdismissed with liberty to the petitioner to pursue his remedy with regard tointerest in the suit instituted by him.