JUDGMENT MANMOHAN, J 1. Mr. Thomas P. Kuruvilla, learned counsel for the respondent requests for an adjournment on the ground that he has recently been instructed by the respondent to enter appearance. He states that even a vakalatnama has not been executed in his favour. 2. Mr. Prabhjit Jauhar, learned counsel for the petitioner has vehemently opposed the request for adjournment. 3. Upon perusal of the order sheets, I find that in a short span of about a year and a half, respondent has already changed its counsel. Co.Pet.161/2009 Page 1 of 7 Mr. Thomas P. Kuruvilla, is the third counsel to enter appearance on behalf of the respondent. 4. I am of the view that the respondent is repeatedly changing its counsel to get further time from this Court as it knows fully well that the dockets of this Court are clogged and no short adjournment can be granted. I may mention that this Court on 15February, 2010, had observed after hearing the matter at some length that prima facie there does not appear to be any serious defence in the matter. Subsequently, even the mediation efforts had failed. 5. Consequently, I decline to grant an adjournment. 6. Briefly stated the relevant facts of the present winding up petition are that respondent executed a work order dated 09August, 2007, in favour of the petitioner for the purposes of carrying out fit out works in respondent’s upcoming office at 21st Floor, Jacaranda Marg, DLF Square, Gurgaon. 7. Clause 4 of the payment term of the said work order states as under:- ?4. Payment Terms: -25% advance shall be released on submission of a promissory note to be submitted by Vendor. -30% after 30 days from the start of work. -30% after 60 days from the start of work. -10% on handing over/Testing and commissioning of the facility to the Client and Submission of As built drawing, handing over documents and removal of all snags to the satisfaction of project Management Consultants and obtaining final completion certificate from the Project Management Consultants appointed by M/s SPA Lifestyle Pvt. Ltd. -Balance 5% of the value would be retained as Retention Money for 6 months from the date of completion of handing over. The retention money will be released only when the Vendor gives a Bank Guarantee for release of retention money will be released only when the Vendor gives a Bank Guarantee for release of retention money in favour of the owner valid for 30 days after completion of Defect Liability period (emphasis supplied) 8. On 05May, 2008, the final bill was certified by Project Management Consultant of the respondent company for a sum of Rs.22,63,173.70/-. The said certificate is at page 47 of the paper book. 9. On 11April, 2008, a final bill certification meeting was held amongst petitioner, respondent as well as the respondent’s Project Management Consultant. The relevant portion of the minutes of the said meeting read as under:- ?C&W presented the final bill for Fit-out of SPA Office to M/s SPA Lifestyle. xxx xxx xxx -M/s SPA Lifestyle accepted the bill and the amount stating that they have faith in the final worked out quantities and amount. SPA assured that this amount would be treated as final. The final amount of the bill is Rs.74,87,706/-. xxx xxx xxx -Providing the solution to the problem M/s SPALifestyle told C&W to prepare the remaining snags/pending works and split them into stages with a completion timeframe for each stage. The payments shall be released accordingly to M/s Aadarshila, based on the satisfactory completion of each stage of desnagging. -M/s. SPA Lifestyle assured that they will leave the cheques with C&W in the name of M/s. Aadharshila and with satisfactory completion of the each stage the cheque may be handed over to M/s. Aadharshila accordingly by C&W. (emphasis supplied) 10. As no cheques were issued by the respondent, the petitioner issued a legal notice for winding up of the respondent company under Sections 433 and 434 of the Companies Act, 1956. 11. In reply to the legal notice, the defence taken up by the respondent company was that there were number of snags/defects in the work executed by the petitioner and further despite the respondent having been paid Rs.5 lacs for starting the de-snagging process, the petitioner had not removed the snags. 12. Having heard the learned counsel for the petitioner and having perused the paper book, I am of the view that on 05May, 2008, the final bill had been certified by the Project Management Consultant of the respondent company. 12. Having heard the learned counsel for the petitioner and having perused the paper book, I am of the view that on 05May, 2008, the final bill had been certified by the Project Management Consultant of the respondent company. In my opinion, once the bill had been certified, then the amount becomes payable as the said final bill was a written document not only prepared by the petitioner but also certified by an agent of the respondent and it would have the same character as if the said bill had been signed by both the parties namely, the petitioner and the respondent. In reaching this conclusion, I am fortified by a judgment of this Court in Pact India vs. Sanjiv Bhasin, (2001) 5AD (Delhi) 667 wherein it has been held as under:- ?9. As already mentioned, the defendant himself agrees that once the bill is certified by the Architect amount there under becomes payable. Final bill, which is a written document, prepared by the plaintiff on being certified by the Architect i.e. the agent of the defendant will have the character as if the said bill is signed by both the parties, namely by plaintiff and by the defendant though his authorised agent, the Architect and it would be a written contract acknowledging the debt or liquidated demand in money payable by the defendant to the plaintiff. The suit therefore would be clearly covered by Order XXXVII. In Mrs. Sushila Mehta Vs. Shri Bansi Lal Arora, ILR 1982 Delhi 320, this court has held that the receipt executed by defendant acknowledge in receipt of certain amount from the plaintiff for the purpose of allotment of shares as application money clearly amounts to contract. {Also see Food Corporation of India Vs . Bal Krishan Garg reported as 21(1982)DLT167}. Therefore, I am of the view that no triable issue is raised by the defendant and he is not entitled to any leave to defend the suit. The plaintiff is entitled to a decree. 13. I also find that the work order executed between the petitioner and the respondent has a liquidated damages clause namely, 6.3, but the same has till date not been invoked by the respondent company. There are also no documents/bills on record to show that the respondent had got any alleged snags/defects rectified from any third party. 14. 13. I also find that the work order executed between the petitioner and the respondent has a liquidated damages clause namely, 6.3, but the same has till date not been invoked by the respondent company. There are also no documents/bills on record to show that the respondent had got any alleged snags/defects rectified from any third party. 14. Moreover, upon perusal of the paper book, I do not find any receipt or any documents showing payment of Rs.5 lacs by the respondent company to the petitioner after the final bill had been certified. 15. A Division Bench of this Court in German Homeopathic Distributors Pvt. Ltd. vs. Deutsche Homeopathic-Union DHU-Arznemittel Gmbh, (2009) 161 DLT 703 has held that in a winding up proceeding, the following principles need to be kept in perspective: ?12. In winding up proceedings it is necessary to keep the following principles in perspective— (i) If there is a bona fide dispute and the defence is a substantial one, the court will not wind-up the company; (ii) Where the debt is undisputed the Court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay it; (iii) Where the defence of the company is in good faith and one of substance, and the defence is likely to succeed in point of law, and the company adduces prima facie proof of the facts on which the defence depends, the petition should be rejected; (iv) The Court may consider the wishes of creditors so long as these appear to be justified; (v) The machinery of winding up should not be allowed to be utilised merely as a means of realizing its debts. [For the above propositions see Pradeshiya Industrial and Investment Corporation of Uttar Pradesh vs. North India Petro-Chemical Ltd., (1994) 2 Comp LJ 50 (SC) in which the observation in Amalgamated Commercial Traders (P) Ltd. vs. Krishnaswami, [1965] 35 Comp. Cas 456 (SC) and Madhusudan Gordhandas vs. Madhu Woollen Industries (P) Ltd. [1972] 42 Comp. Cas 125 (SC) have been paraphrased]; (vi) If the stance of the adversaries hangs in balance it is always open to the Company Court to order the Respondent Company to deposit the disputed amount. Cas 456 (SC) and Madhusudan Gordhandas vs. Madhu Woollen Industries (P) Ltd. [1972] 42 Comp. Cas 125 (SC) have been paraphrased]; (vi) If the stance of the adversaries hangs in balance it is always open to the Company Court to order the Respondent Company to deposit the disputed amount. This amount may be retained by the Court and be held to the credit of the suit, if any.[see Ambala Bus Syndicate Pvt. Ltd. vs. Bala Finance Pvt. Ltd. 1983 (2) SCC 322 and Civil Appeal No.720 of 1999 arising out of SLP(C) No.14096 of 1998 – M/s. Nishal Enterprises vs. Apte Amalgamations Ltd., decided on Febraury,5, 1999]; (vii) Generally speaking, an admission of debt should be available and/or the defence that has been adopted should appear to the Court not to be dishonest and/or a moonshine, for proceedings to continue. If there is insufficient material in favour of the petitioners, such disputes can be properly adjudicated in a regular civil suit. It is extremely helpful to draw upon the analogy of a summary suit under Order XXXVII of the Code of Civil Co.Pet.161/2009 Procedure. If the Company Court reaches the conclusion that, had it been exercising ordinary original civil jurisdiction it would have granted unconditional leave to defend, it must dismiss the winding up petition. (emphasis supplied) Page 6 of 7 16. Keeping in view the aforesaid facts, I am of the view that in the present case, the debt mentioned by the petitioner in its legal notice is an admitted debt and the defence adopted by the respondent in the reply to its legal notice as well as in its reply affidavit is a moonshine. 17. However, keeping in view the fact that the respondent company is a running company, I grant four weeks’ time to the respondent to deposit a sum of Rs.22,63,174/-with the Registry of this Court. In case, the aforesaid amount is not deposited within the stipulated period, the Official Liquidator attached to this Court shall stand appointed as a Provisional Liquidator with regard to the respondent company. It is clarified that in the event, the amount is not deposited within the stipulated period, the Official Liquidator would take over all the assets of the respondent company. 18. In view of the aforesaid, the Company Application No.487/2009 stands disposed of.