Judgment :- This petition is filed by one M/s. Tubecon Products Private Limited under Section 433 (e), 434 (1) (a) and Section 439 of the companies Act praying for a direction to wind up the respondent company and to appoint a Official Liquidator to take charge of the assets, properties, income and business of the respondent company. 2. The grievance of the petitioner herein is that the respondent company approached the petitioner for procuring orders in respect of sheeter project from Tamil Nadu News Print and Papers Limited. It is stated that the respondent were acting as agent on behalf of the German Company by name M/s. ECH Wills GMBH Nedderfelt at Hamburg, Germany, it is the definite case of the petitioner that pursuant to the discussion held between the petitioner and the respondent company at Kolkata and Chennai, the petitioner was asked to liaise with TNPL on behalf of the respondent herein to initiate negotiations to procure the order. For the services rendered. It is stated that the respondent had agreed to compensate the petitioner an amount not exceeding 5% on Ex-factory value of the equipment to be supplied by the respondent’s principal from Germany. 3. The petitioner’s contentions is that consequent on the efforts taken, TNPL has placed a purchase order on 1.3.2002 for the design engineering, and manufacture and supply of sheet cuter and online ream wrapping machine with labeller, spare parts including supervision of erection, start up and commissioning as per the terms and conditions stated in the purchase order. The total value of the equipments supplied by the respondent’s principal from Germany to TNPL for the said sheeter project was to the tune of Euro 19,35,700/-. Paragraph 8 of the petition given the terms and conditions of he purchase order. The petitioner submits that the respondent issued a letter of confirmation on 16.9.2002 setting out the details of the schedule of payment and with reference to commission fee payable to the petitioner for the services rendered in procuring this order. It is seen that 5% on the Ex-factory value of the equipment was to be paid at 40% on receipt of advance payment, 40% on receipt of LC payment after delivery and 20% after receipt of final payment and acceptance of equipment. Calculating on a total Ex-factory value as per the terms, the petitioner quantified its commission at Rs.52,36,390/- calculated at the prevailing exchange rate. Calculating on a total Ex-factory value as per the terms, the petitioner quantified its commission at Rs.52,36,390/- calculated at the prevailing exchange rate. Goods were supplied on various dates between November 2002 and November 2003. The petitioner states that in spite of receipt of the sale consideration, the respondent had not kept up his promise giving 5% commission on the Ex-factory value, as stated in their letter-dated 16.9.2002. This resulted in series of letters and reminders sent on various dates by the petitioner addressed to the respondent herein, referring to the various levels of discussion held with the respondent. The petitioner sent these letters with a copy marked to the Principal company in Germany. Since, according to the petitioner none of these letters evoked any positive response, a statutory notice was issued on November 2003 followed by a registered letter on 18th February 2005. However, these also did not receive any reaction from the respondent company. Aggrieved of the same, the petitioner has came out with this application. 4. On notice from this Court, the respondent has entered appearance. 5. In the course of his argument, Mr. Murari, learned counsel for the petitioner drew my attention to the paper book filed in support of the claim made in the petition and referred a letter dated 16th September 2002, at page 52 in the paper book and submitted that the respondent company had no inclination to comply with the promise undertook to pay the commission at 5% on the Ex-factory value of the equipment on the terms of 40% on receipt of advance payment, 40% on receipt of LC payment after delivery and 20% after receipt of final payment and acceptance of equipment and evaded with such undertaking. The learned counsel submitted that the respondent company cannot ride out of its commitment. The conduct of the respondent company in not answering to any of these letters sent, which are enclosed in the paper book, including statutory notice sent through ‘court, clearly showed the admission as regards the amount payable by way of commission at 5% on the services rendered. The learned counsel also submitted that the respondent cannot deny their status as agent of their Principal in Germany. In the above circumstances, there exist a definite debt, which ought to have been honoured by the respondent company. The learned counsel also submitted that the respondent cannot deny their status as agent of their Principal in Germany. In the above circumstances, there exist a definite debt, which ought to have been honoured by the respondent company. In view of the passive attitude in not giving reply to any of those letters including its statutory notice, the learned counsel submits that the petition submitted by the petitioner company merit acceptance and that the prayer sought for can be granted. 6. In support of his claim, the learned counsel also relied on the decision reported in (1971) 3 Supreme Court Cases 632 in the case of M/s. Madhusudan Gordhandas & Co vs. Madhu Woolen Industries and invited my attention to paragraph 21 at page 638 and submitted that where there is definite debt and the defence of the company is lacking in good faith, the petition filed by the petitioner merited acceptance by this Court. The learned counsel placed reliance on the guiding principles laid down by the Supreme court to the effect that, “……..the principles which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends” 7. The learned counsel for the Petitioner has submitted that in the context of the above statement of law, the letter dated 16.9.2002 was an admission by the respondent company to pay 5% commission, that the respondent company acted against good faith reposed on them by the petitioner company in not respecting the undertaking or responding to their letters and that both on point of law and in fact, the petitioner are likely to succeed as regards claim against the respondent company. Hence, satisfying all the qualifications as stated in the Supreme Court decision, the learned counsel prayed for ordering the petition filed. 8. The respondent company has filed objections to the claim of the petitioner company. In the counter filed before this Court, it is stated that the respondent was not an accredited agent of the said ECH Wills GMBH of Germany but only renders some services to the said organization expecting to do business with the said organization. 8. The respondent company has filed objections to the claim of the petitioner company. In the counter filed before this Court, it is stated that the respondent was not an accredited agent of the said ECH Wills GMBH of Germany but only renders some services to the said organization expecting to do business with the said organization. The respondent submitted that there was no documentary proof to say that they are the accredited agent of the German company. It is submitted that they had full fledged factory carrying on business in manufacturing, assembling, fabricating, buying selling, importing general and special purpose machineries. 9. Referring to the orders placed by the Tamil Nadu News Print and Papers Limited dated 1.3.2002, the learned counsel for the respondent submitted that the purchase order was placed by TNPL on the German company based on global notice inviting bids advertised by TNPL for sheet cutter and ream wrapping machine. In the context of the advertisement placed, the submission made by the petitioner that they were instrumental in procuring the purchase order from TNPL in favour of the German company is totally false. The respondent company denied any involvement of the petitioner company as regards this purchase order. The respondent also pointed out that the petitioner had not rendered any service as regards tender submitted by the German Company. Referring to the letter dated 16.9.2002, the learned counsel for the respondent has submitted that the petitioner had mischievously read the letter in isolation without reference to the fax message dated 25.6.2002 by Hindustan Paper Corporation Limited of Kolkata. Taking me through the letter of the petitioner company dated 26.6.2002, addressed to the respondent company and enclosing the fax message, wherein, Hindustan Paper Corporation Limited had addressed the letter to the respondent company, the respondent’s counsel submitted that the letter dated 16.9.2002 on which heavy reliance was placed by the petitioner was referable to the one given in letter dated 26.6.2002 enclosing the letter from the Hindustan Paper Corporation Limited. The learned counsel for the respondent submits that the said letter dated 16.9.2002 on which the claim is now based was being misused by the petitioner company, to make an unmerited claimed as regards the purchase order dated 1.3.2002, placed on TNPL for German company. The learned counsel for the respondent submits that the said letter dated 16.9.2002 on which the claim is now based was being misused by the petitioner company, to make an unmerited claimed as regards the purchase order dated 1.3.2002, placed on TNPL for German company. The learned counsel further submitted that fax message of Hindustan Paper Corporation Limited, Kolkata, was addressed to the respondent company as regards arranging for administration for proper technical evaluation of the respondent company’s product. Hence, the document dated 26.6.2002, enclosing the fax message of Hindustan Paper corporation Limited and the letter dated 16.9.2002, have to be viewed as one referable to Hindustan Paper Corporation Limited transactions and has nothing to do with the purchase order placed by TNPL. The respondent company had also stated that they had no knowledge about the payment by TNPL on 17.5.2002 or aware of any letter of credit by TNPL. He is also not aware of bill of lading referred to by the petitioner. In fine, the respondent’s counsel has submitted that they had not received any payment by TNPL as alleged by the petitioner. As such there is no question failure and negligence on the part of the respondent company in paying any commission. 10. The respondent company thus viewed this attempt as a sheer harassment and the discussion referred to as purely a matter of imagination. The learned counsel for the respondent submitted that the letters addressed are highly motivated in creating some documentary evidence to support a false claim. Thus the services of the petitioner were never utilized for procuring the purchase order by TNPL on the German company, that the same was based on global tender. As such, the question of paying any commission to the petitioner never arose at any point of time. 11. The respondent company also referred to the fact that they are profit-making company and their reserves and surplus as on 31.3.2005 was more than 68 lakhs. Referring to this financial statements, the respondent has submitted that false statements were made just to gain an unlawful advantage. In these circumstances, the respondent prayed for rejection of the plaint. 12. 11. The respondent company also referred to the fact that they are profit-making company and their reserves and surplus as on 31.3.2005 was more than 68 lakhs. Referring to this financial statements, the respondent has submitted that false statements were made just to gain an unlawful advantage. In these circumstances, the respondent prayed for rejection of the plaint. 12. The learned counsel for the respondent in the course of his argument, placed reliance on the submissions made by the petitioner particularly, with reference to the decision of the Supreme Court and submitted that in the absence of any unimpeachable evidence to warrant a finding that there was a debt, owing to the petitioner company and that the respondent failed and neglected to pay the debt, the petition was not maintainable in law at all. 13. The learned counsel for the respondent, referring to the decision of this Court reported in 1995 Volume 83 Company Cases 135 in the case of Elmeh India vs. Hi-Sound Corder Pvt. Limited and placed particular emphasis on the statement of law at page 141. The counsel further placed reliance on the decision of the Karnataka High Court in the case of R. Chemie Rheinau GMBH vs. Standard Oil Additive reported in (2005) 128 Comp Cases 13 to state that mere assertion of a debt payable is not sufficient to attract the discretion of the Court. The learned counsel also placed reliance on the observation of the Karnataka High court that the machinery for winding up would not be allowed to be utilized merely as a means for realizing debts due from the company. The essence of the principle laid down is that a prima facie case must be made out by the petitioner, which the respondent company should shoulder the onus of disproving it, by showing that its defence is in good faith and one of substance. 14. The learned counsel for the petitioner also relied on the provisions of Section 434 of the Companies Act and submitted that where the respondent failed to answer the statutory notice, a statutory presumption of a deemed inability to pay has arisen. Hence, invoking the presumption, the petition was to be allowed in favour of the petitioner. 15. The learned counsel for the respondent placed reliance on the decision of the case Haryana Telecom Limited Vs. Hence, invoking the presumption, the petition was to be allowed in favour of the petitioner. 15. The learned counsel for the respondent placed reliance on the decision of the case Haryana Telecom Limited Vs. Himachal futuristic Limited (HP) reported in (2006) 65 SCL 19 (HP) in support of the contention that a mere omission of reply to the statutory notice, could not mean that the respondent had admitted the liability. The learned counsel further submits that reliance placed on notice under Section 434 of the Companies Act was totally misplaced since it was only a rebuttable presumption and that the vital question to be decided is whether the respondent case could be brought under the provisions of the Companies Act even for enforcing the deemed provisions contained under Section 434 of the Act to say that there exists a debt that the company is unable to meet. Therefore, unless and until a primary fact as regards the existence of a debt is proved, the question of granting the prayer does not arise. 16. In the context of the submission made by the respondent’s counsel that they never entered into an agreement on an occasion to give the petitioner company a commission, as such, the question of debt arising itself is not there in the circumstances, the learned counsel submitted that the petitioner is liable to be rejected. 17. A perusal of the document relied on by the learned counsel for the respondent and the petitioner, reveals that the basis of the claim of the petitioner company rested on the purchase order by TNPL, alleged to have been processed through the petitioner company. As rightly contended by the learned counsel for the respondent, TNPL, by global noticed invited bids for sheet cutter and ream wrapping machine and there is no reference at all even in the letter addressed to the petitioner company dated 16.9.2002 that 5% commission to be paid for the services was for alleged finalization of the contract from TNPL with the respondent company’s principal. It is also seen that no where it is stated even in the letter that the commission was payable on account of procuring an order for the principal in Germany. It is also seen that no where it is stated even in the letter that the commission was payable on account of procuring an order for the principal in Germany. In the absence of any definiteness in the letter dated 16.9.2002, linking the order from TNPL with the German company through the petitioner company, it is not possible to accept the contention of the petitioner herein that a debt had arisen on account of undertaking given in the letter dated 16.9.2002. Hence, factually, the claim of the petitioner is liable to be rejected. 18. On the question of status of the respondent company as an agent of German Company, there is nothing on record to show that the respondent company, however, acted as an accredited agent of the German company. The petition filed before this Court, carries no reference, whatsoever, or the details as regard the status of the respondent company as an agent nor offered any allegations that the respondent company made the petitioner company believe that they were accredited agent of the German company. There are absolutely no materials to show that on the assurance given by the respondent company, the petitioner was led to believe about the grant of commission for the services to be rendered, particularly, with reference to purchase order placed by TNPL. In any event, as I have stated in the earlier portion of this order there is nothing to link the order placed by TNPL with the petitioner company processing the same with the German company and the respondent company acting as an agent of this foreign company. 19. In the letter dated 16.9.2002, relied on by the petitioner company found in page 52 of the typed set of papers, there is no reference whatsoever as regards any of these contentions taken to be a basis for the claim. In the absence of any details therein, considering the fact that there were prior correspondence as regards similar order placed by Hindustan paper Corporation Limited, and the letter from the petitioner dated 26.6.2002. It is difficult to accept the plea of the petitioner herein and I am constrained to hold that in the absence of the details, the said letter alone cannot be taken as one recognizing the claim for 5%. Thus, leading to the filing of this petition. 20. It is difficult to accept the plea of the petitioner herein and I am constrained to hold that in the absence of the details, the said letter alone cannot be taken as one recognizing the claim for 5%. Thus, leading to the filing of this petition. 20. As regards reliance placed by the learned counsel for the petitioner on the decision reported in (1971) 3 Supreme Court Cases 632, even by the standards, given in paragraph 21 at page 638, the claim of the petitioner has to fall. The respondent company has adduced necessary proof of its defence, in contrast to the total lack of proof as regards the claim made by the petitioner company. In view of the disputed facts herein, the contention put forth by the petitioner cannot be accepted as a prima facie proof of facts on which the petition stands. 21. The decision relied on by the learned counsel for the respondent reported in (2006) 65 SCL page 19, is well founded. Going by the tenor of the provisions of the Act, one can say that Section 434 of the Companies Act raises a mere rebuttable presumption arising on the statutory notice not replied to by the respondent. If the deemed fiction as provided under Section 434(1) of the Companies Act, is to be taken as irrebuttable one, then the question of further provisions regarding notice and other follow up action would never arise. The Court has to arrive at a conclusion that there exists a debt, which the respondent is liable to pay, but which the company had neglected to pay. But where there is a bona fide dispute, the statutory presumption that the company had neglected to pay on receipt of the statutory notice, would not enure to the benefit of the petitioner company herein, to order a winding up, but would have to give way for the disputes to be resolved through remedies other than the one granted under the Companies Act. When there is no lacking of bona fide in the counter, even if there be a debt and there are means to pay, which the respondent company is bound to pay, it may be stated that the issues are not one deserving the intervention of the Court in company jurisdiction. When there is no lacking of bona fide in the counter, even if there be a debt and there are means to pay, which the respondent company is bound to pay, it may be stated that the issues are not one deserving the intervention of the Court in company jurisdiction. This will hold good even with greater force to a case of no debt, wherein, the bona fide or otherwise of the conduct of the respondent company, bear no relevance for consideration by the Court exercising jurisdiction under the companies Act. The decision of the supreme Court reported in 1971 3 SCC 632 , was considered by the Supreme Court in the case of Pradeshiya Industrial and Investment corporation of Uttar Pradesh vs. North India Petro Chemical limited reported in (1994) 79 Company Cases 835 wherein the Supreme Court considered the expression “unable to pay its dues” under Section 433(e) of the Companies Act and held that the said phrase has to be understood in commercial sense that the provisions for winding up are not to be set in motion, merely as a means for realizing the debt, particularly, when the company against whom such, provisions are preferred are profit making organizations with sound financial position. 22. In the decision reported in 2005 Vol.124 Company Cases 473 in the case of Mediqup Systems Pvt Ltd vs. Promixa Medical System GMBH, the Apex Court held that there must be a debt and the company must be unable to pay the debt. The debt under Section 433 of the Companies Act must be a determined or a definite sum of money and where the debt is subject of bona fide dispute and the defence is a substantial one, the Court will not wind up the company. The decision in the case of Madhusudan Gordhandas and Co., was once again quoted by the apex Court reiterating the said proposition of law. 23. In the context of the categorical expression of the law by the supreme court and the decision referred to above, I do not find any reason to accept the contentions of the petitioner company. The defence of the respondent is unimpeachable and one of substance deserve to succeed both on law as well as on facts. 24. In the circumstances, the petition preferred by the petitioner company under Section 434(i) (a) of the Companies Act, deserves to be dismissed. The defence of the respondent is unimpeachable and one of substance deserve to succeed both on law as well as on facts. 24. In the circumstances, the petition preferred by the petitioner company under Section 434(i) (a) of the Companies Act, deserves to be dismissed. However, no order as to costs.