Judgment : ANIRUDDHA BOSE, J 1. The petitioning creditor had supplied green leaf tea to Bijoynagar Tea Company Ltd. (BTCL) in pursuance of a memorandum of understanding executed on 18 July 2003 between 22 July and 24 November 2003. It is the case of the petitioner that green leaf tea was supplied to BTCL at agreed rate from time to time in good order and condition and the latter had appropriated the same for profit. Bills were raised for supply of such tea, and the case of the petitioner is that a sum of Rs.12,48,239.42/- remained outstanding, as BTCL upon receipt of such bills did not pay up the entire amount specified in the bill but made part payment only. 2. The petitioner demanded the sum due, as also sales tax declaration forms, by writing letters, copies of which have been made annexures “E” and “F” to the petition. Thereafter, the petitioner, through their learned Advocates issued a notice on 28 January 2004 under Section 434 of the Companies Act, 1956, calling upon BTCL to pay Rs.12,48,239.42/- along with interest which was calculated to be Rs.52,853/- uptil 31 December 2003. Demand was also made for further interest @ 18% p.a. with effect from 1 January 2004. BTCL responded to this letter denying their liability. Their defence was that substantial quantum of tea supplied by the petitioner was of inferior quality. Thereafter, the present proceeding was instituted. The case of the petitioner is that BTCL received the tea supplied to them without raising any question on its quality, and the defence of supply of inferior tea was only an afterthought. 3. BTCL contested this petition by filing affidavit-in-opposition. In their affidavit-in-opposition certain statements have been annexed, on the strength of which they sought to contend that the difference in qualify of tea was all along brought to the notice of the petitioning creditor. Learned counsel for BTCL stressed on the fact that the memorandum of understanding specified that the price of tea would be at the rate 1.25 per kg as premium in addition to Terai circular price and the tea dispatched by the petitioner did not fulfill the requisite quality. The defence of BTCL is that the premium price was payable only in respect of fine tea leaf count of 45 percentage and above. The defence of BTCL is that the premium price was payable only in respect of fine tea leaf count of 45 percentage and above. In cases where the tea supplied fell below the quality specified, the case of BTCL is that the said fact was informed to the petitioner, and tea of such quality would fetch price lesser than what was agreed for premium quality. It has also been argued that the memorandum of understanding itself provided a dispute resolution mechanism, which is through a process of amicable settlement. Accordingly, it was contended that the price of tea was to be determined through such process, and price of tea which formed the basis of BTCL’s claim was not the appropriate price. On this count, BTCL has prayed for dismissal of the petition. In support of his submissions that in the event bona fide dispute is raised against a claim, proceeding for winding up would not lie, the following authorities have been relied upon by the learned counsel for BTCL:- (a) Mediqup Systems Pvt. Ltd. Vs. Proxima Medical System CMDH (124 CC 473) (b) Madhusudan Gordhandas & Co. Vs. Madhu Woollen Industries Pvt. Ltd. (42 CC 125) 4. In the present case, though I do not find that any specific objection was raised on the aspect of quality of tea by BTCL, in the statements in relation to supply of tea, distinction was made between good leaf tea and coarse leaf tea. Copies of such statements have been made annexures to the affidavit of the company. I find from these statements that upon acknowledging supply of tea, distinction was being made consistently between good leaf and coarse leaf and the percentage of each kind of leaf supplied had been indicated by BTCL. The case made out by BTCL is that the demand raised by the petitioner is made on the basis that the entire supply made by them was of good quality tea, which would fetch premium price and according to BTCL, the petitioner is not entitled to such price. This defence, in my opinion, cannot be straightaway rejected as not being bona fide defence. On the basis of available material, it is not possible for this Court to come to a finding that BTCL has failed to adduce any prima facie proof to defend their case. This defence, in my opinion, cannot be straightaway rejected as not being bona fide defence. On the basis of available material, it is not possible for this Court to come to a finding that BTCL has failed to adduce any prima facie proof to defend their case. There appears to be a legitimate dispute over the claim of the petitioner which requires to be determined through a regular adjudicatory mechanism. 5. In the case of Madhusudan Gordhandas & Co. Vs. M. W. Industries Pvt. Ltd. (supra), it has been held:- “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. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable (See London and Paris Banking Corporation, (1874) 19 Eq. 444). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (See Re. Brighton Club and Norfolk Hotel Co. Ltd., (1865) 35 Beav. 204).” 6. The same principle has been reiterated in the case of Mediqup Systems Pvt. Ltd. (supra):- “This court in catena of decisions held that an order under section 433(e) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression “unable to pay its dues” in section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilized merely as a means for realising debts due from a company.” 7. Applying the ratio of these two authorities in the factual context of the present case, I am of the view that bonafide dispute has been raised in this matter against the claim of the petitioner and it is not the case where the claim is admitted. Applying the ratio of these two authorities in the factual context of the present case, I am of the view that bonafide dispute has been raised in this matter against the claim of the petitioner and it is not the case where the claim is admitted. I do not think it would be equitable to direct winding up of the company in the facts of the present case. The petition shall stand dismissed. However, it shall be open to the petitioner to apply before the appropriate legal forum if they are so advised for reagitating their claim. If any action is instituted, then the petitioner shall be entitled to take defence contemplated in Section 14 of the Limitation Act, 1963, having regard to the fact that this matter was pending before this Court since the year 2004. 8. Urgent Photostat certified copy of this judgment be given to the learned Advocates for the parties if applied for in compliance with all necessary formalities.