JUDGMENT : S.D. PANDIT, J. 1. Vineet Udyog Ltd., a private limited company incorporated under the provisions of the Companies Act, 1956, has filed the present petition against M/s. Roayale Manor Hotels and Ind. Ltd., a company incorporated under the Companies Act, 1956. The petitioner company is dealing in marble and building materials and they supply marble. In the case of the petitioner that the respondent company had initially placed an order for supply of 25000 sq.ft. of marble at the rate of Rs. 110/- per sq.ft. as per the terms and conditions mentioned in the purchase order dated 11.1.1994. It is further claimed by the petitioner that on 6.2.1995 the petitioner company received a back dated fax message for further supply of 30000 sq.ft. marble from the respondent. It is the claim of the petitioner that this additional quantity of marble was to be supplied at the market rate of Rs. 110/- per sq.ft. It is further the claim of the petitioner that they supplied marble to the respondent company, though they were not in a position to supply total goods as per the order placed by the respondent. It is claimed that they are to get a payment of Rs. 11,16,707-15ps towards the price of the goods supplied by the company. It is the claim of the petitioner that though they had demanded the said amount from the respondent-company by issuing letters from time to time, the respondent company has not paid their dues. It is further claim of the petitioner company that respondent has raised false claim, on account of non-supply of the goods by them, that the respondent has suffered a loss. It is the claim of the petitioner that said contention is raised only after the petitioner has served the statutory notice under section 434 of the Companies Act, and according to the petitioner a false suit being Civil Suit No. 6042 of 1995 has been filed on 8.1.1996 for getting a decree for the amount of Rs. 57,11,290-30ps. The petitioner has further averred that though the respondent was duly served with the statutory notice under section 434 of the Companies Act, the respondent has not made the payment of the dues and, secondly the respondent is not in a position to satisfy his debt and, hence the respondent company should be wound up. 2. 57,11,290-30ps. The petitioner has further averred that though the respondent was duly served with the statutory notice under section 434 of the Companies Act, the respondent has not made the payment of the dues and, secondly the respondent is not in a position to satisfy his debt and, hence the respondent company should be wound up. 2. A notice was issued to the respondent, and in pursuance to the said notice, the respondent has appeared and contested the claim of the petitioner by filing affidavit in reply. It is the claim of the respondent that initially they had placed order for supply of 25000 sq.ft. of marble and in view of their additional requirement, they had further placed an order to supply further 30000 sq.ft marble at the rate of Rs. 110/- per sq.ft. According to the respondent, though the petitioner had agreed to supply the said quantity of the goods as per their requirement, they were to supply before 28.2.1995. The petitioner failed to supply the said goods. On account of the non-supply of the said goods, the project of completing the hotel building of the respondent was delayed by nearly three months. It is further claim of the respondent that as the petitioner did not supply the necessary agreed quantity of goods, they had to go in open market and had to purchase the goods at a higher rate of Rs. 47/- per sq.ft. Thus, on account of non-supply of the agreed goods by the petitioner company, the respondent suffered on account of delay in completing the building and by paying higher price for the required goods. It is the claim of the respondent that the respondent has suffered a total lose of Rs. 41,07,000/- after deducting the amount payable to the petitioner for the goods supplied by him which is outstanding from the respondent and, the respondent has filed necessary suit to recover the said amount against the present petitioner in the Civil Court being Civil Suit no. 6042 of 1995. Thus, it is contended by the respondent that there is a reasonable bona fide dispute between the parties as regard the dues payable to the petitioner by the respondent, the present winding up petition is not tenable and the same deserves to be dismissed. 3. 6042 of 1995. Thus, it is contended by the respondent that there is a reasonable bona fide dispute between the parties as regard the dues payable to the petitioner by the respondent, the present winding up petition is not tenable and the same deserves to be dismissed. 3. Now if the averment made by the petitioner in the petition are considered then, it would be quite clear that the petitioner has received the order of supplying 25000 sq.ft. of marble from the respondent-company initially, then there was further order for supply of additional marble to the tune of 30000 sq.ft. Thus, the petitioner has clearly admitted in the petition that the petitioner was to supply as per the contract between the parties in all 55000 sq.ft. of marble. If the averments made by the petitioner in the petition in para-6 as well as in para-7 are read together, than it would be quite clear that the ultimately agreed rate between the parties was Rs. 110/per sq.ft. The petitioner himself has also produced two letters, one sent by the respondent and another sent by the petitioner to the respondent at Annexure-C, page 15 & 16. From the said letter of the petitioner himself, it is also quite clear that there was an agreement between the present petitioner to supply about 55000 sq.ft. of marble. 4. Than from the averments made by the petitioner as well as from the documents produced by the respondent, it is also quite clear that the petitioner has not supplied the total agreed quantity of 55000 sqft. of marble and, it is also quite clear from the letter sent by the respondent to the present petition prior to the exchange of the statutory notice and its reply that on account of the petitioner's failure to supply the agreed quantity of the goods, the respondent has suffered damages as the respondent had to purchase the goods from the open market and on account of delay in completing the project. If the averments made in the petition are carefully considered, then it would be quite clear that from the averments made in the petition it could not be said that the non-fulfilment of the contract by the present petition was on account of commission of some mischief or mala fide acts by the respondent. 5. If the averments made in the petition are carefully considered, then it would be quite clear that from the averments made in the petition it could not be said that the non-fulfilment of the contract by the present petition was on account of commission of some mischief or mala fide acts by the respondent. 5. Therefore, in view of the above stated circumstances, namely that the petitioner has agreed to supply the total quantity of nearly 55000 sq.ft. of marble and, as a matter of fact, the petitioner has supplied only 38000 sq.ft. of the goods and, that the respondent had to go in the open market to purchase the said less supply of the quantity of the goods at a higher rate, the claim raised by the respondent that the respondent has suffered damages on account of the non-supply of the goods by the present petition, could not be said to be a mala fide dispute raised by the respondent in order to defeat the petitioner's claim in this petition. From the material on record, it is not possible to hold that the dispute raised by the respondent as regards its alleged liability of the petitioner in the statutory notice could not be said to be dishonest or malafide dispute raised in order to defeat the petitioner's claim in this petition. The learned advocate for the petitioner had drawn my attention to the contention of the respondent in the replay to the statutory notice as well as to the affidavit in reply and tried point out that the claim for damages of Rs. 47 lacs and odd could not be correct and proper. But in this proceedings, I am not concerned or I am not expected to record a finding as what damages the respondent has suffered on account of admitted non-supply of the goods. I am only concerned with the claim, raised by the respondent that he has suffered a damages on account of non-supply of the goods as the damages suffered by him are higher then what the petitioner is entitled to get towards the price of the goods supplied by him, he has not paid the claim of the petitioner, is a bonafide and honest claim or not. From the material on record, it is not possible for me to hold that the dispute raised by the respondent is not either honest or bona fide in view of the admitted fact namely that there is no supply of the agreed quantity of the goods and, that the respondent had to purchase the goods in open market at a higher rate and, there was also delay in completing the project. 6. Admittedly, the respondent has filed Civil Suit No. 6042 of 1995 prior to the filing of the present petition. No doubt, the said suit was filed after the respondent was served with the statutory notice, but merely because the said suit is filed after the service of the statutory notice, it could not be said that the suit is vaxatious and malafide one. If the correspondence produced by both the sides on record is taken into consideration, than it would be quite clear that initially both the parties wanted to have the dispute settled with negotiation across the table, but as the same could not be worked out by them, they have taken recourse to law by the petitioner issuing the notice under section 434 of the Companies Act and, the respondent filing the suit for damages in the City Civil Court. In my opinion, merely because the said suit is filed after the service of the notice, it could not be said to be false or vaxatious suit and the claim raised by the respondent and the claim of the petitioner is not honest and bonafide one. 7. Therefore, in view of the above consideration, I am of the opinion that there is no admitted debt between the parties and, there is reasonable bona fide dispute regarding the debt in question. Consequently, the present winding up petition under section 433 of the Companies Act will have to be rejected and I accordingly reject the same. But in the circumstances, no order as to costs.