Judgment Narayan Roy, J. 1. This application for winding up the Company, namely, J.N. Hotels Pvt. Ltd., has come up for admission upon notice to the respondent. The respondent has appeared and filed its reply in opposition to the petition for winding up. Heard the learned Counsel for the applicant and the learned Counsel for the respondent. 2. Briefly stated, the case of the applicant for winding up the respondent-Company is that the applicant had submitted a tender to the respondent-Company on 19-1-1988 for interior decoration of the guest-rooms, Bar, Lobby and Restaurant of the Hotel Yuvraj, Ranchi. Pursuant to the tender, the work order was issued in favour of the applicant by the respondent-Company and the applicant thereafter completed the interior work and supplied furniture as per the design and specification approved by and to the satisfaction of the respondent-Company. Thereafter the applicant submitted two final bills, which were drawn on the Company. The details of the bills are as follows :- Bill No. Dated Value ------- ---------- ----------------- 3/89-90 15-7-89 Rs. 5,42,573.68 4/89-90 15-7-89 Rs. 1,78,893.96 ----------------- Total Rs. 7,21,467.64 ----------------- Out of the aforementioned bills, the respondent-Company paid part of the bills to the tune of Rs. 3,95,600.00, thus leaving a debit balance of Rs. 3,26, 467.64 (P). It is alleged by the applicant that this balance amount is payable by the respondent-Company as per the books of account of the applicant. For this balance amount, the applicant made numerous reminders and requests to the respondent-Company to pay the same, but the respondent-Company failed and neglected to pay it, without any cause and reason. The applicant thereafter sent advocates notice dated 8-6-1990 under registered cover to the respondent-Company to clear off the balance dues as indicated above. The aforesaid advocates notice was duly received by the respondent-Company on 14-6-1990. Copy of the notice and the acknowledgment card have been marked as Annexures D and E to this petition. The applicant thereafter gave statutory notice as envisaged under Sec. 434 of the Companies Act, 1956 to the respondent-Company stating therein, inter alia, that in case the Company fails to pay the aforesaid sum, together with interest and notice charge thereon, the applicant would take up winding up/proceeding against the respondent-Company. But the respondent-Company neither gave any reply, nor made payments within the statutory period of 21 days of the date of receipt of the legal notice dated 8-6-1990. But the respondent-Company neither gave any reply, nor made payments within the statutory period of 21 days of the date of receipt of the legal notice dated 8-6-1990. The applicant again sent a notice on 12-9-1990, but the same also remained un-heeded. Consequently thereupon the present winding-up petition has been filed, alleging that the respondent-Company is indebted to the applicant to a sum amounting to Rs, 5,04,960.16 (P) and the applicant has got a prima facie case for winding up the respondent-company and has prayed that it is just and equitable that the respondent-Company should be wound-up by this Court under the provisions of the Companies Act, 1956 . The applicant in the petition has also stated that it has not initiated any other legal proceedings against the respondent-Company and no other similar petition is pending in any other Court of India. 3. The respondent-Company has opposed this petition stating, inter alia, in its reply to the petition for winding-up that the applicant has filed this petition for winding-up with a mala fide intention to coerce the respondent-Company to pay the urgent demand made by it and the instant petition is not maintainable at this stage, since the respondent-Company has already filed a money suit with respect to the same subject-matter in the year 1990, being Money Suit No. 51 of 1990, which is pending disposal in the Court of the Subordinate Judge, Ranchi. The respondent-Company has also denied the liabilities shown by the applicant. It has been stated in the reply that the contract work was undertaken by the applicant and for which an agreement was entered into to complete the decoration works etc. within a period of three months from the date of placing of the order by the respondent-Company But the work could not be completed by the applicant during the stipulated period, which caused incovenience to the respondent-Company in running the Hotel business in time and thereby the respondent-Company suffered a loss to the tune of Rs. 3,000 per day and the respondent-Company took a loan from the Bihar State Financial Corporation and ultimately the respondent-Company had to pay a sum of Rs. 3,86,209.35 (P) between the period February, 1988 to December, 1988 to the Corporation. It has further been stated in the reply that the respondent-Company had made a payment of a sum of Rs, 4,45,000 and the remaining sum i.e. Rs. 3,86,209.35 (P) between the period February, 1988 to December, 1988 to the Corporation. It has further been stated in the reply that the respondent-Company had made a payment of a sum of Rs, 4,45,000 and the remaining sum i.e. Rs. 49,13863 has been adjusted towards part of damages caused to the respondent-Company for non-supply and due to delay in decorating the hotel by the applicant and thus nothing is due now; rather the respondent-Company is entitled to Rs. 12,26,467.44 (P) from the applicant for which the money suit has been filed. 4. It is contended on behalf of the applicant that the present petition for winding-up has been filed in all its bona fide and the applicant has not taken recourse to in other form for the remedy and this petition for winding-up should be admitted. It was further contended that the money suit, as alleged by the respondent-Company in the reply, has been filed much after receipt of the statutory notice and in that view of the matter it is not vextious proceeding and the petition for winding-up has not been filed with mala fide intention to pressurise the respondent-Company to coerce it. 5. Mr. Debi Prasad, learned Counsel for the respondent-Company, stated that this is an admitted position that they money suit has been filed by the respondent-Company in the year 1990 and whereas this winding-up petition under the Companies Act, 1956 , has been filed in the year 1992 and thus it goes to show that the applicant has come up before this Court just to pressurise the respondent-Company to succumb to its terms and conditions and, therefore, this petition should not be admitted. He further contended that the applicant instead of coming to this Court could have appeared in the money suit filed by the respondent-Company and should have filed its cross-objection there and this petition appears to have been filed really to exercise pressure on the respondent-Company. On these grounds, Mr. Prasad submitted that this petition for winding-up the Company should not be entertained. 6. Mr. Yogendra Kalra, learned Counsel for the applicant, in support of his contention has relied upon the case of Straw Board Manufacturing Company Limited V/s. Mahalakshmi Sugar Mills Company Limited, 1991 71 CC 544 . On these grounds, Mr. Prasad submitted that this petition for winding-up the Company should not be entertained. 6. Mr. Yogendra Kalra, learned Counsel for the applicant, in support of his contention has relied upon the case of Straw Board Manufacturing Company Limited V/s. Mahalakshmi Sugar Mills Company Limited, 1991 71 CC 544 . In this case, the question for consideration was not identical and in the winding up proceeding the case of the respondent-Company in that case was disbelieved holding that the plea taken by the respondent-Company was after thought, as it subsequently raised the plea that the goods supplied to it were sub-standard, and accordingly the winding-up petition was allowed. In the case at hand, there is no question of after thought, as from the very beginning the respondent-Company has taken a plea that it has suffered a lot due to the non-fulfilment of the contractual obligations and for that it has already filed a money suit in the year 1990. Had it been a case that money suit was filed after filing of the winding-up petition, in that event the applicant could have raised a plea that the defence raised by the respondent-Company was after thought. In that circumstances, the decision in Straw Board (supra) had no application to the present case. 7. In the same context, the applicant has relied upon a decision in the New India Assurance Co. Ltd, V/s. The Delhi Development Authority and Ors. -- . As I have indicated above that in this case there is no question of after thought, this decision in New India Assurance (supra) has also no application in the case at hand. Mr. Kalra further relied upon the decision in Gulam Hussain Ahmad Ali V/s. Canhag Pvt. Ltd., 1972 (LXII) Company Case 136. In this case, I find that the learned Single Judge of the Bombay High Court has allowed the winding-up petition holding that despite service of statutory notice the Company failed to clear off the dues. There was sufficient indication that it was a clear case where the Company was unable to pay off the dues and in that circumstances the petition for winding-up was allowed. There was sufficient indication that it was a clear case where the Company was unable to pay off the dues and in that circumstances the petition for winding-up was allowed. In the case at hand, I find that there is claim, and counter-claim and the facts alleged by the applicant in this winding-up proceeding has been disputed, and I find that for a counter-claim a money suit has been filed by the respondent-Company and in that view of the matter, in my opinion, the decision in Gulam Hussain (supra) has no application in the facts and circumstances of this case and it appears that there is no legitimate claim of the applicant for winding-up the respondent-Company. 8. Mr. Prasad has relied upon the decision in Amalgamated Commercial Traders (P) Ltd. V/s. A.C.K. Krishnaswami and Anr. 1965 (XXXV) Comp Cas 456. In that case the Supreme Court held as follows : ... a winding-up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the Company. A petition presented obtensibly for a winding-up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the Court. At one time petition founded on disputed debt were directed to stand over till the debt was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern practice has been to dismiss such petitions. But, of course, if the debt is not disputed on some substantial grounds, the Court may decide it on the petition and make the order. In the instant case, I find that the facts are disputed and there is case and counter-case and in that view of the matter, in my opinion, in view of the ratio laid down by the Supreme Court in Amalgamated Commercial Traders (supra) this petition for winding-up is not sustainable and it must be dismissed. Mr. Prasad has also relied upon the decision in In re Federal Chemical Works Ltd, 1964 (XXXIV) Comp Cas 963. Mr. Prasad has also relied upon the decision in In re Federal Chemical Works Ltd, 1964 (XXXIV) Comp Cas 963. In that case it has been held: In order to raise the presumption under Sec. 434(1) as to a Companys inability to pay its debts, it is not sufficient to show merely that the Company has omitted to pay the debt due to the petitioner despite service of the statutory notice ; it must be shown that the Company has omitted to pay without reasonable excuse. The exercise of valid counter-claims would constitute reasonable execuse for non-payment. 9. In view of the ratio laid down in Federal Chemical Works Ltd. (supra) the question to be decided is as to whether the counter-claims set up by the respondent-Company are prima facie valid and bona fide. I have already indicated above that the respondent-Company has already filed a suit and prima fade it appears that the counter-claim is well founded in view of my discussions aforesaid. 10. From the materials on record, I find that almost all the claims raised in this application have been disputed and there is nothing on record to show that the respondent-Company has shown its inability to clear off the dues/debts. I am further satisfied that the respondent-Company has bona fide counter-claim against the applicant, and I am also satisfied that the allegations set forth in this petition do not make out a case for winding-up, and this winding-up proceeding would not be an appropriate remedy as the legitimate counter-claim has already been levied by the respondent-Company by filing a money suit. 11. In the result, I find no merit in this petition and the same is accord ingly dismissed with cost.