T. CH. SURYA RAO, J. ( 1 ) THIS original side appeal is directed against the order dated 10-11-2004 passed by the learned company Court in Company Petition No. 32 of 2004. ( 2 ) THE unsuccessful respondent is the appellant. The respondent herein filed the company petition under Sections 433 (e) and (f) and 439 of the Companies Act, 1956 (for brevity the Act ) read with Rule 95 of the Companies (Court) Rules, 1959 (for brevity the Rules ) requesting the Court to wind up M/s. NATL Technologies Limited in accordance with the provisions of the act. It is expedient here to refer the parties as they were originally arrayed so as to avoid confusion. ( 3 ) BRIEFLY stated the case of the petitioner is thus:-The respondent is a public limited company with its registered office at Hyderabad. In the course of business, it approached the petitioner firm for supply of castor oil. As per the purchase orders placed by the respondent, the petitioner supplied castor oil time to time under various invoices. One of the conditions enjoined under the invoices was that the respondent is liable to pay at 2% interest per month on delayed payments. Thus, from 7-4-2000 to 1-8-2000 the petitioner supplied castor oil worth Rs. 89,13,589/ -. As per the trade practice, payments made shall be adjusted towards interest first and the balance, if any, shall be adjusted towards principal later. The respondent, as per the statement of account of the petitioner, became due to an amount of rs. 64,58,447/- and was liable to pay the said amount with interest at 2% per month. The petitioner got a legal notice dated 6-1-2003 issued to the respondent calling it upon to pay the said amount. Inter alia in the reply letter dated 10-1-2003 the respondent stated that the Income Tax department served a notice under section 226 (3) of the Income Tax Act, 1961 calling upon it to pay the amounts due to the petitioner directly to the Department for adjustment of the Income Tax dues of the petitioner and, thus, an amount of rs. 5,34,868/- was paid accordingly to the department and that earlier an amount of rs. 10 lakhs was paid to the petitioner and after adjusting the said amounts, an amount of Rs. 27,40,882/- was payable. 5,34,868/- was paid accordingly to the department and that earlier an amount of rs. 10 lakhs was paid to the petitioner and after adjusting the said amounts, an amount of Rs. 27,40,882/- was payable. ( 4 ) SOME time later the petitioner got a legal notice dated 23-12-2003 issued to the respondent demanding the payment of outstanding amount of Rs. 65,15,947/ -. The respondent by its letter dated 30-12-2003 issued in reply thereto stated that an amount of Rs. 16,80,468/- was paid to the income Tax Department on behalf of the petitioner and an amount of Rs. 8 lakhs was paid to the petitioner from April, 2003 to july, 2003 and requested the petitioner to withdraw the legal notice. According to the petitioner, it has come to know that the respondent company owed large sums of money to its creditors and it is not in a position to meet its debt obligations and has thus become commercially insolvent. ( 5 ) NOTICE Before Admission was ordered initially in the company petition pursuant to which the respondent put in its appearance and filed a counter-affidavit. The case of the respondent was that it was not to their knowledge and approval that the petitioner adjusted the amounts paid by it from time to time towards interest in the first instance and towards principal later. The petitioner never charged any interest nor informed the respondent about charging of interest on delayed payments. The respondent was making the position clear to the petitioner time to time while making payments to it and also to the Income Tax department towards tax dues of the petitioner. After receiving a legal notice from the petitioner it paid an amount of rs. 10 lakhs to the petitioner and requested it to accept an amount of Rs. 15,80,468/ -. Except the said amount, the respondent is not liable to pay any other amount. Even after the legal notice, the petitioner has been supplying the castor oil and the respondent has been settling the payment bill. There has been no agreement in between the parties to pay the interest on the bills and that the respondent is not liable to pay the same. It is only to pressurize the respondent to pay the amounts, the respondent resorted to file the said company petition. There has been no agreement in between the parties to pay the interest on the bills and that the respondent is not liable to pay the same. It is only to pressurize the respondent to pay the amounts, the respondent resorted to file the said company petition. ( 6 ) AFTER having heard both the learned counsel, the learned Company Court under the impugned order directed the company petition to be admitted and publication of notice of admission in Deccan Chronicle and Andhra Jyothi as per Rule 99 of the rules. Assailing the same, as aforesaid, the present appeal has been filed. ( 7 ) WHILE directing the company petition to be admitted, the learned Single judge inter alia in the impugned order observed that the correspondence between the petitioner and the respondent inter se clearly showed that the respondent was making delayed payments and inasmuch the respondent did not specifically deny the claim of interest inter alia in the correspondence in between the parties inter se, and in fact even agreed to compensate the petitioner for delayed payments that was sufficient indicia to hold that the petitioner had made out a prima facie case and the plea taken by the respondent company was without substance. ( 8 ) AFTER having heard both the learned counsel in this appeal and having due regard to the competing claims of the parties, the short question that falls for our determination in this appeal is that as to whether the respondent is liable to pay interest at 2% per month on delayed payments and when that is being disputed, would it constitute prima facie a valid ground for admission of the company petition? ( 9 ) THERE has been no gainsaying about the trade relationship in between the petitioner and respondent inter se. The petitioner supplied castor oil time to time under various invoices to the respondent which received the same. The respondent used to make payments in lump sum. The respondent also paid certain amounts to the Income Tax department towards tax dues of the petitioner. According to the petitioner, eventually the respondent became due in an amount of Rs. 65,15,947/-; while it is the case of the respondent that an amount of rs. 16,80,468/- alone was due. The respondent used to make payments in lump sum. The respondent also paid certain amounts to the Income Tax department towards tax dues of the petitioner. According to the petitioner, eventually the respondent became due in an amount of Rs. 65,15,947/-; while it is the case of the respondent that an amount of rs. 16,80,468/- alone was due. It has been the specific case of the petitioner that one of the conditions enjoined under the invoices under which the commodity was supplied time to time, is to the effect that interest was payable at 2% per month on the delayed payments. The respondent emphatically denied any agreement between the parties inter se for payment of interest. In view of such assertion and denial on the part of the respective parties, it becomes a contentions issue tc be adjudicated by a competent Court. It is not clear from the record that what exactly was the amount due to be paid by the respondent to the petitioner although there has been no gainsaying that the respondent had to pay some amount to the petitioner. Whether the respondent is liable to pay an amount of rs. 65,15,947/- as claimed by the petitioner or is liable to pay only Rs. 16,80,468/- as claimed by it, is again yet another contentious issue to be decided. Both the parties seemed to have not adduced any evidence oral or documentary. At any rate, it is not discernible from the impugned order that any such material was placed before the Company court with reference to which the Company court could have reached eventually the necessary prima facie conclusion of the contentious issues. ( 10 ) ADMITTEDLY, there has been no written agreement in between the parties inter se for payment of interest on delayed payments. Indeed, it has been observed so by the learned Comapny Court at Page 10 (Para 2) of its Order However, the fact remains that there had been delayed payments on the part of the respondent. Whether it constitutes a prima facie case to show that the respondent is unable to pay its debts is the moot question. It is appropriate, therefore, to notice the provisions germane in the context for consideration at the outset. Section 433 of the Act is the relevant provision which reads as under:"section 433. Whether it constitutes a prima facie case to show that the respondent is unable to pay its debts is the moot question. It is appropriate, therefore, to notice the provisions germane in the context for consideration at the outset. Section 433 of the Act is the relevant provision which reads as under:"section 433. Circumstances in which company may be wound up by Court:- A company may be wound up by the Court, (a) if the company has, by special resolution, resolved that the company may be wound up by the Court; (b) if default is made in delivering the statutory report to the Registrar or in holding the statutory meeting; (c) if the company does not commence its business within a year from its incorporation, or suspends its business for a whole year; (d) if the number of members is reduced, in the case of a public company, below seven, and in the case of private company, below two; (e) if the company is unable to pay its debts; (f) if the Court is of opinion that it is just and equitable that the company should be wound up. " ( 11 ) A perusal of the above provision shows that a company may be wound up by the Court if the company is unable to pay its debts or if the Court is of the opinion that it is just and equitable that the company should be wound up it can direct the company to be wound up as per section 433 clauses (e) and (f) respectively. ( 12 ) SECTION 434 of the Act deals with situations when a company shall be deemed unable to pay its debts. It reads as under:"434. ( 12 ) SECTION 434 of the Act deals with situations when a company shall be deemed unable to pay its debts. It reads as under:"434. (1) A company shall be deemed to be unable to pay its debts (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; (b) if execution or other process issued on a decree or order of any Court in favour of a creditor of the company is returned unsatisfied in whole or in part; or (c) if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company. (2) The demand referred to in clause (a) of sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorized on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm. " ( 13 ) A perusal of the said provision shows that a company shall be deemed that it is unable to pay its debts if the company which is indebted in a sum exceeding five hundred rupees neglected to pay the said sum for three weeks pursuant to the demand notice requiring it to pay or if the amount due by the company remained unsatisfied either in whole or in part when any execution or other process is issued pursuant to a decree or order of any Court passed in favour of the creditor or if it is proved to the satisfaction of the Court that the company is unable to pay its debts. So as to attract the provisions of Section 433 (e) of the Act, the creditor, therefore, shall prove one of the three situations enjoined under Section 434 (1) of the Act. The situations covered by clauses (b) and (c) of sub-section (1) of Section 434 are not attracted in this case. So as to attract the situation covered by clause (a) thereof, the petitioner must show before the court that the respondent company after having received the legal notice demanding payment neglected to pay the amount for three weeks or more than that. ( 14 ) EXCEPT making a bald allegation in the company petition that the petitioner had come to know that the respondent company owes large sums of money to its creditors and it is not in a position to meet its debt obligations and as, therefore, become commercially insolvent, the petitioner has not taken necessary care to prima facie establish the same. The only piece of evidence available on the side of the petitioner is that the respondent is indebted to the petitioner a sum which is claimed towards interest on the delayed payment. Assuming for a moment that the respondent company is liable to pay interest on the delayed payments and it has not paid the said amount to the petitioner, could it be said that the respondent neglected to pay the debt particularly when the respondent is disputing the liability of payment of interest on the delayed payments and when there is no such written agreement in between the parties for such payment of interest. ( 15 ) TURNING to the law on the point, in amalgamated Commercial Traders (Private) Ltd. v. A. C. K. Krishnaswami, (1965) 35 Com. Cases 456 (SC), the Apex court held thus:"it is well-settled that 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 ostensibly 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 petitions 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. At one time petitions 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 ground, the Court may decide it on the petition and make the order. . . . . If the debt was bona fide disputed, as we hold it was, there cannot be neglect to pay within in Section 434 (l) (a) of the companies Act. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated. " ( 16 ) IN Harinagar Sugar Mills Co. Ltd. v. M. W. Pradhan, Court Receiver, high Court, Bombay, (1966) 36 Com. Cases 426 = AIR 1966 SC 1707 , the Apex court held thus:"a winding up petition is not an alternative forum for realizing the debt but equity is to be rendered between the parties. " ( 17 ) IN Madhusudan Gordhandas and Co. v. Madhu Woollen Industries pvt. Ltd. , (1972) 42 Com. Cases 125 = air 1971 SC 2600 , the Apex Court held thus:"two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the Court will not wind up the company. . . . . Where the debt is undisputed the Court will not act upon a defence that the company has die ability to pay the debt but the company chooses not to pay that particular debt. In re, A Company (1894) 2 Ch 349 (Ch D ). Where, however, there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the Court will make a winding up order without requiring the creditor to quantify the debt precisely. (See In Re, Tweed s Garags ltd. , 1962 Ch 406 = (1962) 32 Com cases 795 ). (See In Re, Tweed s Garags ltd. , 1962 Ch 406 = (1962) 32 Com cases 795 ). The principles on which the court acts are (1) that die defence of the company is in good faith and one of substance; (2) the defence is likely to succeed in point of law; and (3) the company adduces prima fade proof of the facts on which the defence depends. Another rule which die Court follows is mat if there is opposition to the making of the winding up order by the creditors, the court will consider their wishes and may decline to make the winding up order. Under Section 557 of the Companies act, 1956 in all matters relating to the winding up of the company the Court may ascertain die wishes of the creditors. The wishes of die shareholders are also considered, though, perhaps, the Court may attach greater weight to the views of the creditors. " ( 18 ) FROM the above, the legal position seems to have well-settled that a winding up petition is not a legitimate means to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and that a bona fide dispute for payment constitutes a valid ground for opposing the company petition. ( 19 ) THE learned Counsel appearing for the petitioner seeks to place reliance upon a judgment of the Madras High Court in rashid Leathers (P) Ltd. v. Super Fine skin Traders, (1990) 68 Com. Cases 684. That was a case where the main dispute between the parties inter se was in regard to the payment of interest. While the petitioner claimed that the respondent was liable to pay interest at 18% p. a. , the respondent claimed that it was not liable to pay any interest and in any event the question of liability of interest cannot be gone into in proceedings for winding up. While the petitioner claimed that the respondent was liable to pay interest at 18% p. a. , the respondent claimed that it was not liable to pay any interest and in any event the question of liability of interest cannot be gone into in proceedings for winding up. Under those circumstances, the Madras high Court, having regard to the fact that the petitioner has been repeatedly making demands for interest as well as the principal by several letters; and in all the replies sent by the respondent, it had been assuring the petitioner that it would settle i the claim; and it had never demurred that it was not liable to pay interest on the amount due; and for the first time the respondent raised the contention in the proceedings before the Company Court that it was not liable to pay interest; held mat if a dispute was raised for the purpose of evading payment and delaying the proceedings it could not be considered to be a bona fide dispute. ( 20 ) RELIANCE has also been sought to be placed on the judgment in D. K. Jain v. Polar Forgings and Tools Ltd. , (1995) 84 com. Cases 766. It was held by the Delhi high Court that where the liability to pay the principal amount was not disputed by the company in a winding up petition, the creditor need not be forced to initiate separate proceedings for recovery of the interest; and that the interest can be determined by the company Judge in the winding up proceedings and on the failure of the company to pay that amount, the company could be ordered to be wound up on the ground that it was unable to pay its debts. ( 21 ) ON the other hand, the learned counsel appearing for the respondent/ appellant seeks to place reliance upon a judgment of this Court in Multimetals Ltd. v. Suryatronics Pvt. Ltd. , 1996 (3) ALD 305 = (1997) 89 Com. Cases 259. That was a case where winding up petition was filed on the premise that the company sought to be wound up failed to pay rs. 4,16,239/- including interest and bank charges of Rs. 2,405/- towards the cost of the brass tubes supplied to it, the company contended that only an amount of rs. Cases 259. That was a case where winding up petition was filed on the premise that the company sought to be wound up failed to pay rs. 4,16,239/- including interest and bank charges of Rs. 2,405/- towards the cost of the brass tubes supplied to it, the company contended that only an amount of rs. 1,10,620/- remained payable which was being remitted on 4-11-1994 and that there was no stipulation for payment of interest. The Company Court framed two points for determination, namely, whether the company is liable to pay interest on the value of the goods supplied by the petitioner; and whether the company is liable to be wound up for inability to pay the amount. It was held, on the above facts, thus:"it is well-settled that a company can be wound up only when it is proved that the debt claimed against it is ascertained, definite and undisputed and that the company has failed to pay the same and winding up cannot be ordered if there is bona fide and substantial defence denying the liability. So, the question that has to be examined is whether the liability of the respondent company to pay interest on the overdue bills is bona fide ascertained and undisputed?"having regard to the fact that the petitioner in that case failed to produce its books of account to show the payment of interest by the company it was held that the creditor never charged interest on the account of the company and, therefore, it was held that the parties had not stipulated for payment of interest on over due bills, repelling the contention that the interest is payable even in the absence of any stipulation in regard thereto as per the provisions of the Sale of Goods Act or under the provisions of Interest Act. It was further held that it was the discretion of the Civil Court to award interest in the absence of a stipulation for payment of interest in a properly instituted suit for recovery of money or damages and that winding up proceedings are not in the nature of suit for recovery of money and, therefore, the creditor cannot invoke those provisions. In that context it was held thus:"it is well-settled that winding up proceedings are not an alternative for recovery of the money for which a civil suit is ordinarily the remedy. In that context it was held thus:"it is well-settled that winding up proceedings are not an alternative for recovery of the money for which a civil suit is ordinarily the remedy. It is also well settled that for claiming winding up, the creditor has to establish that the respondent owes a definite and ascertained amount to it and that it has failed to pay the same in spite of reminders. The company Court cannot be used as forum by the creditor to establish its rights either regarding the debt or regarding the interest" ( 22 ) FOLLOWING the said j udgment, again in Bombay Glass Blowing Industries v. Bio Vaccines Pvt. Ltd. , 1998 (1) ALD 390 = (1999) 98 Com. Cases 174, a learned single Judge of this Court held thus:"for the foregoing reasons, I respectfully agree with the view expressed by my learned brother, S. Dasaradharama Reddy, J (as he then was) that, a company can be wound up only when it is, infer alia, proved that the debt claimed against it is ascertained and definite and mat it had failed to pay the same, and, therefore, has become commercially insolvent. The aforementioned provisions of the Sale of Goods Act, the Interest Act as also section 34 of the Code of Civil Procedure, refer to the discretion of the Civil Court to award interest in a suit for recovery of money and cannot be invoked to establish the claim for interest in winding up proceedings. Claiming an unascertained and indefinite amount falls within the purview of bona fide dispute. Even otherwise, the claim based on the unascertained and indefinite amounts, is not a matter to be considered for dissolution of a company, because, the Company Court has eidier to allow or disallow the petition, but has no jurisdiction to pass an order directing to pay the claim amount including an unascertained and indefinite amount of interest because it is the function of a civil Court to award interest and, under these circumstances, on the mere ground of multiplicity of proceedings, it cannot be considered for issuing such a direction. The Punjab and Haryana and madras High Courts have not considered the position of law from the aforesaid angles. The Punjab and Haryana and madras High Courts have not considered the position of law from the aforesaid angles. " ( 23 ) YET another judgment on which the learned Counsel seeks to place reliance is the judgment in Ultimate Advertising and marketing v. G. B. Laboratories Ltd. , (1989) 66 Com. Cases 232. According to the facts in that case, the alleged debt pertains to the amount of interest from june 1st, 1984. It was not determined amount but rate of interest claimed was 18% per annum. The company sought to be wound up seriously disputed the claim for interest taking up the stand that no amount was payable as interest and the amount of interest was never agreed upon nor the rate of interest was fixed nor the question of payment of interest was ever raised in any of the correspondence between the parties at all. Under those circumstances, the Allahabad High Court was of the view that the winding up Court could not investigate into the question of the rate and quantum of interest and unless it was established that the amount claimed was either agreed upon or admitted or decreed by a Competent Court, the amount did not become a debt. In the process, the court sought to place reliance upon certain passages in Halsbury s Laws of England, 4th Edition, Volume 7, Paragraph 999; palmer s Company law, 23rd Edition, page 1114, Paragraphs 85-86; and Buckley on the Companies Acts, 14th Edition, page 523. When there is a bona fide dispute about the very debt, it cannot be said that there has been neglect to pay within the meaning of clause (a) of sub-section (1) of Section 434 of the Act, is the essence of the said passages. ( 24 ) THE Apex Court in Amalgamated commercial Traders (Private) Ltd. v. A. C. K. Krishnaswami (supra) indeed observed at Pages 463 and 464 thus:"if the debt was bona fide disputed, as we hold it was, there cannot be neglect to pay within Section 434 (l) (a) of the companies Act. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated. " ( 25 ) IN Kitply Industries Ltd. v. Hari narain and Sons Pvt. Ltd. , (1998) 91 CC 715, the Rajasthan High Court was of the view that when there was no agreement, written or oral stipulating payment of interest on the late payment, the clause contained in the bills for payment of interest cannot form part of the contract. ( 26 ) IN the instant case, admittedly, there was no such agreement in between the parties for payment of interest. Even in madhusudan Gordhandas and Co. v. Madhu Woollen Industries Pvt. Ltd. (supra) the Apex Court reiterated that when the debt is bona fide disputed and the defence is substantial one, the Court will not wind up a company. However, the defence of the company shall be in good faith and one of substance. The petitioner seeks to rely upon the invoices which according to him contain at the foot a clause for payment of interest on delayed payments. Such a clause, even assuming is there, since it has not been placed by means of any cogent evidence in this case, in view of the judgment of the Rajasthan High Court in kitply Industries case (supra), cannot constitute an agreement between the parties for payment of interest. The legal position; thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub-section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance. ( 27 ) DIRECTING the company petition to be admitted and ordering publication, as is required under law, will jeopardize the interests of the company more particularly, the interests and - welfare of the workers. Therefore, it shall be borne in mind by the company Court before ordering publication. ( 27 ) DIRECTING the company petition to be admitted and ordering publication, as is required under law, will jeopardize the interests of the company more particularly, the interests and - welfare of the workers. Therefore, it shall be borne in mind by the company Court before ordering publication. In such circumstances, it is appropriate in certain cases to defer the publication by directing the company to pay the amount to show its bona fides, when the amount demanded is definite and ascertained and there is no bone fide dispute. Once there is a dispute as regards the liability, which is shown to be bona fide and taken in good faith, the company petition cannot be the solution for compelling the company to pay the debt. The remedy in such cases seems to be elsewhere by means of a properly constituted civil suit. ( 28 ) HAVING regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs. 65,15,947/- basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts. ( 29 ) FOR the above reasons, the appeal is allowed and the impugned order dated 10-11-2004 passed in Company Petition no. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts. ( 29 ) FOR the above reasons, the appeal is allowed and the impugned order dated 10-11-2004 passed in Company Petition no. 32 of 2004 is hereby set aside. Under the circumstances, we direct both the parties to bear the respective costs.