JUDGMENT : Pinaki Chandra Ghose, J. 1. This appeal is directed against a Judgment and/or order dated 26th March, 2009 whereby the Hon'ble Single Judge was pleased to hold as follows: Therefore, I find that the company is really unable to pay the dues as the cheques were dishonoured. There has been no payment admittedly thereof and as such criminal proceedings has been initiated. I hold that company is unable to pay the debts of the petitioning creditor to the extent of Rs. 43,09.848 being the amount covered by the said cheques. It is not possible for this court to adjudge pay ability of balance claim in the petition on account of interest without accurate accounting which is complex is nature. However, if the company pays this amount by eighteen equal monthly installments first of such installment shall be paid on or before 16th May 2009 and go on paying month by month on or before 16th of each succeeding month this petition will remain stayed permanently. In case of default in paying the first installment and the last installment or two intermediary installments the petition will stand admitted and in that case the petitioning-creditor shall make publication once in The Statesman an once in Sanmarg. Publication in Calcutta Gazette is dispensed with. The facts of the case briefly are as follows: The winding up petition was presented by the respondent against the appellant company claiming balance of price of goods sold and delivered by the respondent were remained unpaid. 2. The respondent carried on and still carries on as a dealer of materials like pig iron, C.I. Scrap and other related materials. On diverse dates in the year 1997 the appellant company placed orders upon the respondent for supply of pig iron, C.I. Scrap etc. The respondent duly effected such supply during April 1997 and October 1997. The challans showing the delivery of such goods were also placed before the Trial Court and the respondent raised its bills for such supplies and the appellant from time to time had made part payments in respect thereof. 3. It appears that such winding up petition was based on the claim of the respondent for a sum of Rs. 36.13 lakhs as principal amount was outstanding on account of such supply. 3. It appears that such winding up petition was based on the claim of the respondent for a sum of Rs. 36.13 lakhs as principal amount was outstanding on account of such supply. It further appears that the respondent relied on confirmation of accounts which is also annexed to the paper book as on 31st March. 1998 and 31st March, 1999. 4. It further appears that the appellant issued cheque to the tune of Rs. 43.09.848 from time to time. On presentation, such cheques were dishonoured. Hence, the notice u/s 138 of the Negotiable Instrument Act was issued by the respondent and further notice u/s 434 of the Companies Act, 1956 was duly issued by the respondent and the appellant duly received the same. 5. However, it is the case of the appellant is that statutory notice dated 31st May 2000 was admittedly return with endorsement 'not claimed'. The appellant in its defence denied the outstanding dues of the respondent for a sum of Rs. 38 laks and it is the case of the appellant is that after adjustment of accounts a sum of Rs. 9,848 is only due and outstanding from the appellant company to the respondent. 6. It is the case of the appellant company is that cheques were issued not to liquidate the dues of the respondent but it has been claimed that the said cheques were issued only for future supplies to be made by the respondent to the appellant company. It is the case of the appellant that the advance cheques for a sum of Rs. 43 Lakhs all were handed over to the representative of the respondent after due receipts and vouchers were issued in respect of such cheques and all the vouchers were singed by an employee of respondent namely S.K. Jha and were duly stamped. 7. The further case of the appellant is that the purchase ledger of the appellant would show that the cheques were issued for future supplies. It is further stated on behalf of the appellant company that the adjustment of the accounts were duly brought to the notice of the respondent which was denied by the respondent and the documents tried to be relied upon by the appellant company. 8. It was contended on behalf of the respondent that all such documents disclosed by the appellant are manufactured and fictitious. 8. It was contended on behalf of the respondent that all such documents disclosed by the appellant are manufactured and fictitious. It is also alleged that the seal of the company was also fabricated and S.K. Jha was never authorized to signed any voucher. The sales tax declaration forms disclosed were not filed with the Sales Tax authorities by the company. It is further stated that the documents disclosed by the appellant company are fabricated and forged. Such allegations had been made in the supplementary affidavit filed before the Company Court. 9. In reply thereto, it has been shown that S.K. Jha was also at the administrative office and that there were other vouchers for collection of cheques were also singed by S.K. Jha and that Sales Tax declaration forms were submitted to the Sales Tax authorities by the respondent and due receipt given by the Sales Tax authorities. In these circumstances, the stand of the company is that it is a bona fide defence to the claim made by the respondent in the winding up petition. 10. It is the case of the appellant that although there are serious disputed question of facts with allegations and counter-allegations between the parties with regard to the genuineness of several documents, the learned Single Judge has admitted the winding up petition without considering the documents placed before the Court. The Hon'ble Single Judge held that the documents which have been submitted by the appellant are created for the purpose of putting up defence of reciprocal supply of materials. It is submitted on behalf of the company that the said finding of the Hon'ble Single Judge was erroneous. 11. It is further submitted that the Hon'ble Single Judge did not consider the case of the respondent which has been made out on their behalf that there has been fraud committed by the appellant. Therefore, it is submitted that in view of such stand a winding up petition cannot be entertained and the learned counsel relied on a decision of IBA Health (I) Pvt. Ltd. Vs. Info-Drive Systems Sdn. Bhd., (2010) 10 SCC 553. 12. It is further submitted that there is a suppression of material facts by the respondent by not disclosing the subsequent supply of pig iron, C.I. Scrap and settlement of accounts in the winding up petition. Info-Drive Systems Sdn. Bhd., (2010) 10 SCC 553. 12. It is further submitted that there is a suppression of material facts by the respondent by not disclosing the subsequent supply of pig iron, C.I. Scrap and settlement of accounts in the winding up petition. All such documents have been suppressed by the respondent which at this stage they say to be manufactured or forged. On the ground of suppression it is submitted that the winding up petition should have been dismissed. The learned Senior Counsel relied upon the decision of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 13. It is submitted on behalf of the appellant that all documents are forged, fabricated and manufactured in that case respondent cannot come before the Court in a winding up petition and the Court cannot decide the question summarily without adducing any evidence. 14. It is stated that even if a suit is maintainable by respondent against the company, the company is entitled to claim an equitable set off. It is submitted that although the petition was filed in the year 2000 but the matter was pending, and, therefore, filing of any suit by the company for recovery of its claim would not arise at this stage as the company has claimed all its dues as against the dues of the respondent. The learned Counsel further submitted that it would be inequitable to admit a claim of the respondent, disallowing a claim of the company. Reliance was placed in the case of Bhoja alias Bhoja Ram Gupta Vs. Rameshwar Agarwala and others, AIR 1993 SC 1498 . 15. It is submitted that an equitable set off is not restricted by the laws of limitation. In support of his submission he relied on the decision of Ramdhari Singh Vs. Permanund Singh and Others. 16. In these circumstances, it is submitted that without adducing evidence it cannot be possible in this proceeding to decide the issue. He further relied upon the following decisions in support of such submissions:- (1) Ram Krishna Mukherjee Vs. Ankit Metal and Power Ltd., (2011) 1 CHN 483 . (2) SRC Steel (P) Ltd. Vs. Bharat Industrial Corporation Ltd., (2005) 4 CHN 343 . 17. Per contra it has been submitted on behalf of the respondent Mr. He further relied upon the following decisions in support of such submissions:- (1) Ram Krishna Mukherjee Vs. Ankit Metal and Power Ltd., (2011) 1 CHN 483 . (2) SRC Steel (P) Ltd. Vs. Bharat Industrial Corporation Ltd., (2005) 4 CHN 343 . 17. Per contra it has been submitted on behalf of the respondent Mr. Debangshu Basak learned Advocate appearing on behalf of the respondent drew our attention to the order passed by the learned Trial Court and submitted that Court has specifically recorded the admitted situation which reads as follows:- On the face of the aforesaid admitted situation the Company has raised dispute that there has been reciprocal supply of substantial quantity of pig iron to the petitioning-creditor, consequently price of the same has been adjusted against the dues of the petitioner. In order to establish this case of sale and supply of pig iron necessary invoice and challans were produced. The company stated that those cheques were issued for advance payment for future supply of materials by the petitioning creditor. Now the question is how far this case of rival claim by way of set off is believable reading affidavit and even if it is believed whether such plea of set off the claim is legally acceptable in this case. 18. According to him there is no reciprocal supply of materials. The respondent had sold and delivered materials to the appellant. The Hon'ble Single Judge duly dealt with the question of adjustment of account and drew our attention to the judgment of the Hon'ble Single Judge where the Court had held as follows:- Therefore, plea of setting off in the action in Court for the first time cannot be taken on the ground of automatic adjustment. In the affidavit in opposition it has been specifically stated that there has been no agreement for adjustment as alleged. 19. He further pointed out that the Hon'ble Single Judge found that there is no acceptable explanation as to why the cheques were dishonoured. 20. He further pointed out that the learned Judge also found that the petition does not suffer from suppression of materials facts. 21. On the contrary, the Hon'ble Single Judge found that there was valid balance confirmations. After duly considering the said questions the Court came to the conclusion and held that there was no dispute. 20. He further pointed out that the learned Judge also found that the petition does not suffer from suppression of materials facts. 21. On the contrary, the Hon'ble Single Judge found that there was valid balance confirmations. After duly considering the said questions the Court came to the conclusion and held that there was no dispute. The story of reverse supply was set up for the first time in Court and should not be entertained as a bona fide dispute to resist the claim of the respondent. 22. In these circumstances, the respondent submitted that the story of supply of the goods to the respondents was made for the first time in the affidavit in opposition. 23. He further submits that after the cheques were dishonoured, the appellant wrote the letter dated 7th June, 2000 alleging that all bills pertaining to period 1996-1998, were seized by the Sales Tax authorities and stated that:- Since we do not have record of your bills we shall be grateful if you would provide us duplicate/Xerox copes of the bill pertaining the aforesaid cheques transactions. 24. Since we have agreed mutually that whatever has happened is a thing of the past and amicably settle the issue we shall be happy to have copies of bills requested by us above. 25. He drew our attention to the letter dated 7th June, 2000 and according to him, the following facts would emerge from the said letter:- (i) The cheques were not advance cheques but were issued against some bills, (ii) There is no whisper about any supply being made by the appellant to the respondent. (iii) It was not even alleged that the price of the goods were adjusted against the supply made by the appellant. (iv) The appellant is apologetic and talks of settling the issue. 26. Mr. Basak further drew our attention to the letter dated 6th July, 2000 and the receipt of the said letter is not admitted by the respondent. In the said letter appellant did not state anything about supply of goods being made by the appellant to the respondent. 27. On the contrary, it is submitted that the documents tried to be relied upon by the company was only disclosed for the first time in the affidavit affirmed on 12th May, 2003 prior thereto the affidavit-in-opposition had been affirmed on behalf of the appellant on 27th November, 2000. 27. On the contrary, it is submitted that the documents tried to be relied upon by the company was only disclosed for the first time in the affidavit affirmed on 12th May, 2003 prior thereto the affidavit-in-opposition had been affirmed on behalf of the appellant on 27th November, 2000. There is no whisper with regard to the said documents. Some of the advance cheques were post-dated cheques which has been contended before the Court which are absurd and improbable. 28. Mr. Basak further submitted in the affidavit-in-opposition certain vouchers were disclosed from where it will be seen as per the appellant, the cheques were issued on the dates mentioned in the cheques. The vouchers and the letter is clearly contradictory. 29. Mr. Basak drew our attention to the following chart:- 30. Therefore, he submitted that the defence is a moonshine and sham defence. He further submitted that the question of adjustment of price cannot be unilaterally adjusted and he relied on the decision of Bhoja Ram Gupta's case (Supra). 31. In these circumstances, he submitted that the appeal should be dismissed as the appellant has not raised any bona fide dispute. 32. After considering the facts and circumstances of this case and the materials placed before us, it appears to us that the appellant tried to raise a dispute at this stage which cannot be accepted by us. 33. On the contrary, we found from the date of the cheque and the voucher, as our attention had been drawn to those by Mr. Basak, the vouchers and letters are clearly contradictory. It further appears that the Hon'ble Single Judge duly considered the case of the appellant and correctly held that there is no acceptable explanation given by the appellant as to why the cheques were dishonoured. The plea of setting of the claim of the appellant also cannot be accepted since in the affidavit-in-opposition it has been specifically stated that there has been no agreement as alleged. It appears from the fact that the said question has correctly decided by the Hon'ble Single judge. On the question of suppression or fraud having regard to the case and counter-case of the parties also cannot be accepted. 34. His Lordship has minutely checked the facts as placed before the Court with the materials and came to the conclusion that there has been no consideration for the cheques being issued. On the question of suppression or fraud having regard to the case and counter-case of the parties also cannot be accepted. 34. His Lordship has minutely checked the facts as placed before the Court with the materials and came to the conclusion that there has been no consideration for the cheques being issued. His Lordship further held that the factum of issuance of cheques in favour of particular person pre-supposes consideration unless it is shown that cheques were issued under threat, coercion or fraud. The appellant has failed to make out such case. It further appears that in the winding up petition it would be evident from the Annexures 'E' and 'D' that the outstanding dues with particulars have been specifically indicated and His Lordship has held as follows:- I have examined the statement very minutely and it records the amount due and payable on account of sale and supply of the goods to the company and also credit of the amounts of payment of the dues made from time to time. This statement is described to be confirmation of accounts made by the company with seal and signature. There is no bona fide nor legally entertainable dispute to such confirmatory statement having been made out; only explanation has been given that this was done for income tax purpose. However, this plea has been taken in relation to annexure "D", there is explanation simply regarding annexure "C". In my view outright rejection of such plea by the Court of law would not be suffice, the same ought to be sternly disapproved as it is desperate attempt to wriggle out liability with conscious act of dozing if not evading tax liability. If such a plea is entertained by the law Court or any tribunal, it would amount to illegal encouragement being offered to tax dozzer and/or evader. The balance sheet prepared unilaterally by the company in relation to the transaction has no manner of relevancy in this matter. I hold at the risk of repetition that strategy of evading due income tax is illegal and this illegality can not be accepted to be defence in any sense in any legal proceedings. In any event when the company consciously accepted and confirmed the said statement to be true once, it is estopped from taking any plea otherwise than confirmation. 35. In any event when the company consciously accepted and confirmed the said statement to be true once, it is estopped from taking any plea otherwise than confirmation. 35. In these circumstances, we do not find that there is any illegality and/or irregularity in respect of the order so passed by His Lordship. We also do not find that there is any ground has been made out by the appellant to entertain with the order so passed by His Lordship. The defence which has been taken by the appellant, in our considered opinion, cannot be tried to be a bona fide defence or can raise any issue to be decided by the Court. It appears to us that the plea taken by the appellant is without any materials and cannot be entertained at all. 36. We have noticed the facts in Ram Krishna Mukherjee's case (Supra) and it appears that the said decision cannot be applicable in view of the fact that the petitioner/appellant cannot come within the purview of the test laid down in the decisions which were noted by the Division Bench in Dunlop lndia Ltd. vs. Anamika Udyog, reported in 1994(1) CHN 409 ; Amalgamated Commercial Traders (P.) Ltd. Vs. A.C.K. Krishnaswami and Another, (1965) 35 CompCas 456, Madhusudan Gordhandas and Co. Vs. Madhu Wollen Industries Pvt. Ltd., AIR 1971 SC 2600 and Mediquip Systems Pvt. Ltd. Vs. Proxima Medical System GMBH, AIR 2005 SC 4175 it appears to us that the said decision cannot be a help to the appellant in the facts and circumstances of this case since no bona fide defence has been put forwarded by the appellant. 37. We have also noticed in SRC Steel (P) Ltd. (Supra) where the Court held that in the case of a bona fide disputed debt the winding up petition itself would not be admitted. But in our considered opinion we have not been able to find out that a bona fide dispute has been raised in the facts and circumstances of this case. 38. But in our considered opinion we have not been able to find out that a bona fide dispute has been raised in the facts and circumstances of this case. 38. We have noticed in Bhoja Alias Bhoja Ram Gupta's case (Supra) where the Court held that a tenant cannot help himself from the consequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent paid consequent upon mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such an adjustment. 39. We have noticed in S.P. Chengal Varaya Naidu's case (Supra) where the Court held that the act of deliberate disobedience with the design of securing something by taking unfair advantage of another. In that case, it is also a fact that the proper materials have to be placed before the Court. 40. In our considered opinion, if there is any absence of presenting such materials before the Court where the Court cannot come to a decision that fraud has been committed by a party then the Court should not accept the said fact while deciding the matter in question. In other words without materials/ particulars it is difficult to come to such a conclusion with regard to fraud. 41. We have also noticed in Iba Health (India) Private Limited (Supra) where the Court held that if there is a bona fide dispute on substantial grounds, the Court should dismiss the winding-up petition and direct the creditor to establish his claim in a proper procedure not invoking the winding-up procedure. It appears to us that the said decision cannot have any right to play in this case since it appears to us that the Hon'ble Single Judge has found that the grounds appear to be substantial to pass the said order and the Court found that there is any bona fide dispute has been raised on the basis of the material placed before the Court. But in the instant case it appears that the company has failed to raise a bona fide dispute in the matter on the basis of the material placed before the Court and in that circumstances, we hold that there is no ground to interfere with the order passed by the Hon'ble Single Judge. 42. We do not find any merit in this appeal. 42. We do not find any merit in this appeal. Hence, we dismiss this appeal. We have dismissed this appeal but we want to give a chance to the petitioner/appellant to pay off their dues to the extent of Rs. 43,09,848/- as directed by the Hon'ble Single Judge. However, if the company pays this amount by 18 (eighteen) equal monthly instalments, first of such installment shall be paid on or before 2nd July, 2012 and go on making payment month by month on or before 2nd of each succeeding month till the full payments are made, the winding up petition shall be permanently stayed. In default of payment of any one instalment or the last one the petition shall stand admitted and in that case the petitioning-creditor shall take necessary steps in accordance with the order passed by the Hon'ble Single Judge.