ASHIM KUMAR BANERJEE, J. ( 1 ) THIS winding up petition relates to a claim for goods sold and delivered. By a Purchase Order dated 27th march, 2001 the petitioner supplied goods to the company on different dates between May, 2001 and December, 2002. There had been part payments from time to time. Ultimately as on March, 2003 a sum of rs. 81,28,795. 24 became due and payable. By a letter dated 19th March, 2003 the company admitted a sum of Rs. 61 lakhs and odd and prayed for time till the end of June, 2003 to clear off the said dues. By the said letter the company also asked the petitioner to supply further equipment. From 19th March to 12th May, 2003 parties remained silent (at least from the pleadings it appears ). On 12th May, 2003 the petitioner agreed to take the goods back to minimise the outstanding dues as according to the petitioner the company expressed their inability to make payment because of financial stringency. On 14th May, 2003 the petitioner again asked the company to clear the dues. ( 2 ) ON August 4, 2003 the petitioner wrote to the company threatening them to take action to recover the money due to them. While sending the said letter to one of the directors of the company, the addresser, sent copy of the said letter to his subordinates with a direction to take steps by initiating action against the company by August 14, 2003. This portion of the instruction, however, was also printed on the letter which was sent to the company. The company being apprehensive of legal action being taken by the petitioner. immediately wrote a letter dated August 8, 2003 and raised for the first time various disputes with regard to the quantity and/or quality of the materials supplied by the petitioenr to them. It was categorically pointed out that no money was payable in view of such dispute. They also threatened to invoke arbitration clause incorporated in the purchase order by referring the dispute to the arbitrator. By a separate letter dated August 11, 2003 the company raised the dispute and asked the arbitrator to initiate proceedings. It was categorically pointed out that no money was payable in view of such dispute. They also threatened to invoke arbitration clause incorporated in the purchase order by referring the dispute to the arbitrator. By a separate letter dated August 11, 2003 the company raised the dispute and asked the arbitrator to initiate proceedings. The petitioner on the other hand replied to the said letter of August 8, 2003 by their letter dated August 20, 2003 denying all allegations and served a statutory notice of demand on the company on August 22, 2003. Although the factum of last part payment was not pleaded anywhere in the pleadings on a query made by this court, Mr. Aninda Mitra, learned senior counsel, appearing for the company, on instruction, informed this court that last part payment was made for a sum of Rs. 10. 24 lacs on July 3, 2003. ( 3 ) ON April 6, 2004 the winding up petition was filed. The company filed their affidavit-in-opposition on August 6, 2004. Before the winding up petition was filed the arbitrator entered upon reference and both the parties participated at the arbitration. The company filed its statement of claim. The petitioner filed its counter-statement wherein they made a counterclaim for the identical amount which was claimed in the petition. The arbitration proceeding is still pending and awaiting its disposal before the arbitrator. In the affidavit-in-opposition the company took the identical stand as they took in their letter dated August 8, 2003. In addition they produced two letters dated May 7, 2003 and May 30, 2o03 appearing at pages 16 and 19 of the affidavit-in-opposition wherein they sought to raise disputes. The receipt of the said two letters were categorically denied in the affidavit-in-reply. To that the company could not offer any reasoable explanation as to how those two letters were served upon the petitioner. ( 4 ) ANALYSING the aforesaid facts it appears to me that for supply during the period of May 2001 and December 2002 there had been no contemporaneous objections raised by the company at any point of time. Even if I accept that those two dispute letters of May 7, 2003 and May 30, 2003 were in fact written by the company those were much belated and made at a stage when the petitioner insisted upon payment of the dues. Mr. Even if I accept that those two dispute letters of May 7, 2003 and May 30, 2003 were in fact written by the company those were much belated and made at a stage when the petitioner insisted upon payment of the dues. Mr. Mitra appearing for the company, submits that once the petitioner agreed to withdraw the supplies as indicated in their letter dated may 12, 2003 this would conclusively prove existence of a dispute which requires adjudication in a proper proceeding. Mr Mitra has made reference of Sale of Goods Act Under the said act if a buyer objects to the supply either on account of quantity or on account of quality they would have to raise their dispute contemporaneously, within a reasonable time. P'or the supplies made eat 2001-02 from the pleadings it does not appear that any contemporaneous dispute was raised. On the contrary, substantial payments were made from time to time and the last payment was made on July 3, 2003 there was no contemporaneous dispute. The letter of August 4, 2003 was received by the company with the internal endorsement and they became apprehensive and raised dispute for the first time by their letter dated August 8, 2003 and referred the dispute to arbitration on August 3, 2003. In the affidavit-in-oppesition while dealing with the letter dated March 19, 2003 the company contended that since they were in urgent need of further supplies such assurance was made. They also reserved their right to make further submissions on the construction of the said letter. Mr. Mitra while making arguments on behalf of the company did not offer any reasonable explanation with regard to the said letter of March 19, 2003. The relevant portion of the paragraph 14 of the affidavit in-opposition dealing with the said letter of admission dated March 19, 2003 being relevant herein is quoted below: "i say that the letter dated 19th March, 2003 cannot be relied as because the faults in the defective goods were realised as and when the same were put to use for machining. Moreover, the said company at this juncture was in urgent requirement of goods and had represented the same to the petitioning creditor. The petitioning creditor and however demanded an ad hoc payment of Rs. Moreover, the said company at this juncture was in urgent requirement of goods and had represented the same to the petitioning creditor. The petitioning creditor and however demanded an ad hoc payment of Rs. 61 lacs and had stated that if the said payment would not be received by it, no further goods would be supplied. The said company in urgent requirement of such goods had caused the aforesaid letter to be written. However when the defects were realised, we had informed the petitioning Creditors officers in Calcutta that the aforesaid communication stood withdrawn, we reserve our rights to make appropriate submissions with regard to the said letter dated 19th march 2003 and the Company states the contents of the said letter have been misconstrued and misapplied by the petitioning creditor. " ( 5 ) IF I look to the affidavit of the company it would appear that the goods were defective and those were intimated by the company in their letter dated May 7, 2003. If that fact was true, why substantial payment of Rs. 10. 24 lacs was made on July 3, 2003, is a question whose answer is not known to this court at least not offered by the company. The company by its affidavit contended that the goods were defective and this was evident from the fact that the railways withheld the payment of a sum of Rs. 44 lacs and odd for defective supplies made to the railways which was produced by utilising the petitioner's product. When the railways rejected the goods or withheld the payment, was not categorically stated in the affidavit. In other part of the affidavit it was contended that the goods were. found defective when those were put to use. These are two contrary stands taken by the company which would show that the company is not definite as to which course they should adopt to to evade payment of the dues of the petitioner. In this regard I rely on the decision in the case of Imperial hydropathic Hotel Company reported in 49, Law Times, Page 147. The relevant passage is quoted below: the rule is no doubt, that when the debt is undisputed and is of sufficient amount, then be has a right to obtain payment by a winding up petition if be has given a statutory notice. The relevant passage is quoted below: the rule is no doubt, that when the debt is undisputed and is of sufficient amount, then be has a right to obtain payment by a winding up petition if be has given a statutory notice. Then we have to consider what is the meaning of a debt being undisputed. As I said in the case, there was no reasonable excuse for refusing to pay this debt or negaking to pay it but was there under a mistake in law, a bona fide dispute something which should have prevented him from presenting the winding up petition ? I do not think there was. 1 have looked through the correspondence and I must say, I have come to the conclusion that the writers of the letters on the part of those who disputed the claim of Mr. Batty had no clear idea of their position. They stated in one letter one position. They stated in one letter one thing, and in another letter another, but none of the letters appear to me to amount to this we dispute your debt on any one of these grounds, They said in one letter, You did not lend it to our client. " In another letter, We have received no notice of your claim, and cannot admit any claim against these persons without evidence in support of it. Then they ask for particulars but when we come to the facts we find this that the creditor know they had a balance sheet with his name in it and with the amount in that they had paid him interest in April, receiving this demand in may for the $500 from the very people, and of course he would naturally think they were trifling with him, and that they knew the particulars. Besides that, he tells them this, and 1 think he might reasonably believe that they were playing with him. That is the view 1 take of the correspondence, and I am by no means unprepared to say this that if they have put all those shadowy claims together in a letter, in the most distinct terms, the creditor would still have been entitled to think they were to use a common phrase. Making game of him that they could not be serious in such a line of defence. Making game of him that they could not be serious in such a line of defence. Then he is entitled to say, "my claim is not bona fide disputed. You are amusing yourselves by weaving some cobwebs; but you do not intend to pay, and you knew that this is nonsense, and that it is a mere excuse of non-payment, or for obtaining delay. " It is not because of man says "i dispute the debt" that makes it a disputed debt. He must give some reasonable ground, and if he writes a series of nonsensical propositions, it appears to me the creditor is entitled to say : You are merely amusing yourself by trying to put me off with vague and frivolous excuses - you do not see any ground to dispute it in law. " It appears to me that this was not a case in which the creditor had notice of a bona fide dispute as to his debt, which would compel him to refrain from attempting to recover payment of what is really an undisputed debt, an undefended demand, by means of a winding up petition, and the result is in my opinion that he is entitled to succeed. " ( 6 ) FROM the aforesaid passage it appears that when the company is not definite about its stand to be taken to defend a winding up petition and thereby takes one or the other plea it would proper the court to admit the winding up petition as this was not a sign of a bona fide dispute. ( 7 ) IN this backdrop, I unhesitatingly hold that the company has failed to put forward a bona fide dispute before this court to resist the order of admission of the winding up proceeding. ( 8 ) IN a winding up petition, in my view, the court has to see that whether the defence raised by the company is bona fide or not The phrase has not been defined in the statute. The earlier precedents consistently suggest that a dispute that in the prima facie view of the court can be sustained at the trial is a bona fide dispute. The earlier precedents consistently suggest that a dispute that in the prima facie view of the court can be sustained at the trial is a bona fide dispute. It was also held by a Single Bench of this court that to find out whether the dispute is bona fide or not, if the court is in doubt, the court to test the bona fide of the company and can relegate the parties to a civil proceeding by putting the company n terms. The said decisionwas being followed for a considerable time. ( 9 ) MY understanding of the law on the subject was that in a winding up petition at the stage of admission the court was to see whether any triable issue was raised by the company. If such test is affirmative then winding up petition must fait To test whether the dispute is triable or not the court is to see whether such dispute is contemporaneously raised or not. A dispute raised after a demand was made or after a winding up petition was filed, is not considered to be a contemporaneous dispute and those disputes are not considered as bona fide disputes to resist the order of admission. Similar view was taken by me in the case of s. R. Steel pvt. Ltd. (CP No. 351 of 2003 ). However, a Division Bench of this court by Their Lords hips elaborate judgment and order dated august 11 and 12, 2004 set aside my decision in the said case. While doing so the Division Bench observed two things which are set out below: (I) There cannot be a third situation in a winding up petition. The winding court should either come to a conclusion that the dispute was bona fide and then refuse the order of admission or in case it finds otherwise it would admit the winding up petition. (ii) While admitting the winding up petition the company court should come to a definite conclusion that the claim of the petitioner is 'indisputable debt' meaning thereby a final adjudication of the claim of the petitioner and the defence raised by the company to the said effect. ( 10 ) IN applying the ratio decided by the Division Bench in the instant case I have come to a definite and final conclusion that the amount climed by the petitioner is indisputable debt'. ( 10 ) IN applying the ratio decided by the Division Bench in the instant case I have come to a definite and final conclusion that the amount climed by the petitioner is indisputable debt'. Sitting in a winding up court on the basis of affidavit evidence I cannot come to such a conclusion. The Division Bench also observed in the said judgment that two parallel proceedings on the self-same cause of action were permissible. However, the winding up court while hearing the winding up proceeding should either stay the winding up proceeding or the other proceeding. In the case before the Division Bench there was a suit pending before the civil court instituted by the company wherein the petitioning creditor filed a written statement making a counter-claim of the identical amount involved in the winding up proceeding, In the instant case before the arbitrator in the counter statement the petitioner made a counter-claim of the identical amount involved in the winding up proceeding. ( 11 ) MR. Mitra appearing for the company, submits that in view of the provisions of Arbitration and Conciliation Act, 1996 the Winding Up Court is not competent to stay the arbitration proceedings. Hence, it can only either admit the winding up proceeding or reject it or direct postponement of the hearing of the said winding up proceeding till the award is published by the Arbitrator. 1 have not been able to appreciate the submission of mr. Mitra on this score. According to Mr. Mitra, even if the ratio decided in The case of S. R. Steel Pvt Ltd. (supra) is applied if I come to a definite conclusion that the amount claimed by the petitioner is an indisputable debt' even then I cannot stay the arbitration proceeding. I cannot agree to such contention. However, since I have not come to a final conclusion that the amount claimed by The petitioner is an Indisputable debt. I am not in a position to admit this winding up petition. ( 12 ) APPLYING die decision of the Division Bench referred to supra 1 adjourn the hearing of the Company Petition being CP No. 171 of 2004 till the disposal of the arbitration proceeding. ( 13 ) LET xerox certified copy of this judgment and order be supplied to the parties. If applied for, upon compliance of all formalities. Petition disallowed.