Judgment :- This company Petition, for winding up of the respondent – company, is filed under sections 433 (e), 434 (1) (a) & (c) and 439 (1) (b) of the Companies Act, 1956 (the ‘Act’ for short) read with Rule 95 of the Companies (court) Rules, 1995. The petitioner sought allotment of an apartment at the respondent’s venture in Lanco Hills, Manikonda, Gachibowli, Hyderabad. The respondent is a company incorporated under the Act having its registered office at Hyderabad. Its authorized share capital is Rs. 600 crores divided into sixty crore equity shares of Rs. 10/-each. The paid up share capital of the respondent company is Rs. 381 crores. The main objects for which the respondent company was established is to carry on the business of builders, real estate developers, contractors, erectors, construction office, industrial institutional or commercial and in particular, to design, develop, finance, construct, market, operate and maintain information technology parks, townships, building sites etc; to carry on business as developers of land, buildings, immovable properties and real estates by constructing, reconstructing, altering, improving, decorating, furnishing and maintaining offices, flats, houses, factories, warehouses, buildings, with a view to establish and provide infrastructure and other facilities for information technology and information technology enabled service entities and to enter into any arrangements, agreements, etc with State / Central Government departments and undertakings. The respondent company issued paper notifications inviting applications from those interested in purchasing commercial or residential apartments at their complex called “Lanco Hills Township” at Manikonda, Gachibowli, Hyderabad. The petitioner submitted application dated 04.07.2007 for allotment of an apartment in the said project. He was, thereafter, allotted flat No. 2104 in the 21st floor, Tower 2 LH, admeasuring 3,659 square feet of super built up area. As per the agreed terms, the consideration to be paid was fixed at Rs. 3,900/-+ Rs. 150/-per square feet; Rs. 4,00,000/-towards two covered car parking spaces; and Rs. 1,50,000/-towards club membership. The total consideration for the said flat, car parking area, and other facilities, was Rs. 1,61, 33, 681/-. The petitioner paid Rs. 39,65,729/-. The application form, in the printed format made available by the respondent company, prescribes the conditions for allotment of an apartment details of which shall be referred to hereinafter. The petitioner, by letter dated 11.11.2008, sought cancellation of allotment of the residential apartment allotted to him earlier. 1,61, 33, 681/-. The petitioner paid Rs. 39,65,729/-. The application form, in the printed format made available by the respondent company, prescribes the conditions for allotment of an apartment details of which shall be referred to hereinafter. The petitioner, by letter dated 11.11.2008, sought cancellation of allotment of the residential apartment allotted to him earlier. The cancellation form is also in a printed format made available by the respondent company which the petitioner filled up. The respondent’s office endorsed thereupon that the amount would be refunded after deducting cancellation charges of Rs. 25,000/-. It is the petitioner’s case that he made several representations from 11.02,2009 onwards, besides personal visits to the office of the respondent, seeking refund of the amount due to him on cancellation of the allotment. Along with their letter dated 28.02.2009, the respondent enclosed a cheque drawn on HSBC Bank, Hyderabad for Rupees Ten Lakhs towards partial refund. As the respondent failed to refund the balance, the petitioner got issued a legal notice, under section 433 (e) read with 434 (1) (a) of the Companies Act, 1956, on 9.11.2010’ and forwarded it to the respondent by registered post acknowledgement due on 12.11.2010. As no payment was made within three weeks of the demand, the petitioner has invoked the jurisdiction of this Court seeking winding up of the respondent company. In the counter-affidavit filed by the respondent, it is stated that the petitioner had merely Rs. 39,65,729/-from out of the total sale consideration of Rs. 1,61,33,681/-; Rs. 1,21,67,952/-is still due to be paid by them though the time schedule prescribed for such payment expired long ago; the respondent had addressed letter dated 08.05.2008 asking the petitioner to pay the overdue amount as on that date i.e., for Rs. 16,65,803/-; the petitioner sought time. But did not make payment except for Rs. 39,75,729/-; the petitioner cannot, without valid reason, unilaterally cancel the agreement; payment of Rs. 10,00,000/-with a view to maintain good relations does not absolve the petitioner of fulfilling the conditions stipulated for allotment of the apartment; the amount to be refunded to the petitioner is not a “debt”, the respondent had paid Rs. 39,75,729/-; the petitioner cannot, without valid reason, unilaterally cancel the agreement; payment of Rs. 10,00,000/-with a view to maintain good relations does not absolve the petitioner of fulfilling the conditions stipulated for allotment of the apartment; the amount to be refunded to the petitioner is not a “debt”, the respondent had paid Rs. 10,00,000/-, by cheque No. 439687 dated 28.02.2009, with the intention of maintaining good relations with its customers, the application form, signed by both the parties, contains an arbitration clause for resolution of disputes; the petitioner has approached the wrong forum, particularly in view of the arbitration clause, disputes, if any, have to be resolved by the arbitrator as per the terms and conditions stipulated in the application form; the respondent is worth Rs. 381 crores, and a petition for winding up is not maintainable as the company is solvent; the respondent company is worth around Rs. 2000 crores on the project; the company has already sold 600 flats which are ready for delivery to the respective purchasers after the balance amount, due by them, is paid; the balance sheet and profit and loss account for the period ending 30.09.2010 would show that the project is nearing completion; and winding up of a successful and commercially viable company, for refund of a meagree amount of Rs. 29,40,729/-, would cause irreparable loss and damage to the respondent. Sri P. Prabhakar, Learned counsel for the petitioner, would submit that the petitioner does not desire to press for winding up of the respondent under section 433 (f) and section 434 (1) (c) of the Companies Act, and the relief sought is limited to section 433 (e) read with section 434 (1) (a) of the Act. Learned counsel would submit that the application form, signed by both parties, stipulates the terms and conditions to be fulfilled both by the petitioner and the respondent herein; the clauses mentioned therein require the parties to enter into an agreement of sale; in the absence of any agreement of sale being entered into, the conditions prescribed in the application form provide for cancellation on forfeiture of Rs. 25,000/-due to the petitioner, the petitioner had paid Rs. 39,65,729/-; after the petitioner had requested for cancellation, in the printed form, the respondent had partially refunded the amount paid by the petitioner i.e., for Rs. 25,000/-due to the petitioner, the petitioner had paid Rs. 39,65,729/-; after the petitioner had requested for cancellation, in the printed form, the respondent had partially refunded the amount paid by the petitioner i.e., for Rs. 10,00,000/-; having acted upon the petitioner’s request for cancellation of the allotment, it is not open to the respondent to now turn around and contend that further amounts are due and payable by the petitioner, the respondent’s letter dated 28.02.2009, to which the cheque for Rs. 10,00,000/-was enclosed, makes no mention of payment having been made by them only to maintain good relations with their customers; it merely refers to the cancellation of allotment, and that the cheque amount was towards partial payment; the dispute raised by the respondent is not bonafide, and is a mere moonshine; commercial solvency is not a stand alone requirement, and must be examined in the context of whether a bonafide dispute exists; in the absence of a bonafide dispute, dismissal of a company petition on the ground that the company is solvent would render section 433 (e) read with section 434 (1) (a) redundant; failure to make payment, despite a statutory notice being issued under section 434 (1) (a), requires this court to deem that the respondent is unable to pay its debts; and failure to make payment, within three weeks of receipt of the statutory notice, would amount to “neglect to pay” necessitating admission of the company petition, and its advertisement. Learned counsel would rely on IBA Health (India) Private Limited v. Infor-Drive systems SDN. BHD(2010) 10 SCC 553 in this regard. On the other hand, Sri M.S. Srinivase Ayyangar, Learned Counsel for the respondent company, would submit that since, the petitioner has a remedy of invoking the arbitration clause to have the dispute resolved, he ought not to be permitted to invoke the discretionary jurisdiction of this court under section 433 of the companies act, Rs. On the other hand, Sri M.S. Srinivase Ayyangar, Learned Counsel for the respondent company, would submit that since, the petitioner has a remedy of invoking the arbitration clause to have the dispute resolved, he ought not to be permitted to invoke the discretionary jurisdiction of this court under section 433 of the companies act, Rs. 10,00,000/-paid by the respondent was merely a goodwill gesture, and did not absolve the petitioner of his liability to pay the consideration payable on allotment of the apartment; it is the petitioner who is due amounts to the respondent, and not the other way round; the dispute is genuine, and is not a moonshine; even otherwise the respondent company is a solvent company as is evident from the annual financial statements enclosed to the counter-affidavit; the remedy under section 433(e) is a remedy of the last resort; the petitioner cannot invoke the jurisdiction of this court under section 433(e) to wind up a commercially solvent company merely for refund of a meagree sum of Rs. 29,40,729/-; the petitieonr’s attempt to have the respondent wound up is only a coercive means of realizing their dues for which the remedy is by invoking the arbitration clause under the agreement; and since the agreement provides for an effective alternative remedy by way of arbitration, this court would not wind up a solvent company in exercisee of its discretionary jurisdiction under section 433(e) of the companies act. Learned counsel would rely on Kitti Steels Limited v. M/s. Sanghi Industries Limited Order in C.P. No. 62 of 2008 dated 03.09.2009 in this regard. Before examining the rival contentions, it is necessary to refer to the documents enclosed to the petition, and to the unaudited balance sheet and profit and loss account filed along with the counter-affidavit. It is evident therefrom that the petitioner had submitted an application dated 04.07.2007, in the prescribed form for provisional allotment of an apartment, giving his preference for flat No.2014 on the 21st floor of Tower 2, LH. Along with the application, he paid Rs. 2.5 lakhs as advance. Condition No.7, of the terms and conditions stipulated in the application form, requires the applicant, after a provisional allotment letter is issued by the respondent , to enter into a sale or other agreement within 30 days, failing which provisional allotment of the flat would be cancelled without prior intimation, and cancellation charge of Rs. 2.5 lakhs as advance. Condition No.7, of the terms and conditions stipulated in the application form, requires the applicant, after a provisional allotment letter is issued by the respondent , to enter into a sale or other agreement within 30 days, failing which provisional allotment of the flat would be cancelled without prior intimation, and cancellation charge of Rs. 25,000/-would be levied on the applicant. Clause 8 stipulates that, in case the applicant decides to cancel the allotted apartment after entering into a sale or other agreement, cancellation charges of Rs. 50,000/-would be levied. It is not in dispute that no sale or other agreement was entered into and as such, condition No. 8 has no application. Condition No.13 provides that, in case the applicant decides to cancel the allotment, cancellation charges of Rs. 25,000/-would be deducted by the respondent from the application amount paid by him. On a conjoint reading of conditions 7 and 13 it is clear that, in the event of the applicant not entering into a sale or other agreement within thirty days from the date of application (i.e. 04.07.2007) or if the applicant decides to cancel the allotment, the respondent is entitled to deduct cancellation charges of Rs. 25,000/-from the amount paid. Condition No.18 is the arbitration clause which provides that all disputes, arising out of or in relation to the terms of the application including the interpretation and validity thereof and the respective rights and obligations of the parties, shall be settled amicably by mutual discussion failing which the same shall be settled through arbitration; and the arbitration proceedings would be governed by the provisions of the Arbitration & Conciliation Act, 1996. The respondent’s letter dated 08.05.2008, calling upon the petitioner to pay the balance consideration for the apartment, is much before the petitioner sought cancellation of allotment; and as such, reliance placed thereupon by the respondent is misplaced. On 11/11/2008 the petitioner sought cancellation, of his booking of apartment No.2104 in Tower 2LH, in the form prescribed by the respondent. While relinquishing his rights over the booking of apartment no.2104/2LH, the petitioner stated that the said apartment no. 2104/2LH could be sold to whomsoever the respondent deemed fit. The petitioner requested the respondent to refund the amount, paid by him earlier towards his booking, as per the terms and conditions of the provisional application form. While relinquishing his rights over the booking of apartment no.2104/2LH, the petitioner stated that the said apartment no. 2104/2LH could be sold to whomsoever the respondent deemed fit. The petitioner requested the respondent to refund the amount, paid by him earlier towards his booking, as per the terms and conditions of the provisional application form. On 10.01.2009, an officer of the respondent approved the petitioner’s request for cancellation, and endorsed thereon that Rs. 25,000/-should be deducted. Subsequently the authorized signatory of the respondent company issued a cheque for Rs. 10,00,000/-, (Cheque No. 439687 dated 28.02.2009 drawn on HSBC bank, Hyderabad), in favour of the applicant and forwarded it along with their letter dated 28.02.2009. The said letter dated 28.02.2009 records that the cheque was being issued against cancellation and subsequent request for refund of the provisional booking of apartment No.2104/2LH Lanco Hills, Manikonda, Gachibowli, Hyderabad. The subject matter of the said letter dated 28.02.2009 is “Partial Refund of Provisional Booking amount for 2104/2LH at Lanco Hills, Manikonda, Gachibowli, Hyderabad, A.P., India”. It is evident from the said letter dated 28.02.2009 that the cheque for Rs. 10,00.000/-was issued against cancellation of the allotment, and the petitioners subsequent request for refund of the amount paid by him earlier towards provisional booking of the flat. Having acted on the petitioner’s request for cancellation, and having paid Rs. 10,00,000/-towards partial refund of the provisional booking amount, the respondent cannot now be heard to contend that payment of Rs. 10,00,000/-was only in order to maintain cordial customer relations, and nothing more. It is evident that the respondent had agreed for cancellation of allotment, and their contention the petitioner had failed to adhere to the terms of allotment, in not paying the balance consideration of Rs. 1,21,67,952/-, is merely an after thought, and is without merit. The respondent’s contention of the existence of a bonafide dispute is without basis. A company can be wound up on a petition of a creditor only if it is unable to pay its just debts. The inability is indicated by its neglect to pay after a proper demand, and the lapse of three weeks. Such neglect must be judged by the facts of each case. A company can be wound up on a petition of a creditor only if it is unable to pay its just debts. The inability is indicated by its neglect to pay after a proper demand, and the lapse of three weeks. Such neglect must be judged by the facts of each case. Where the defence is that the debt is disputed all that the court has to see is whether the dispute, on the face of it, is genuine or merely a cloak for the company’s real inability to pay its just debts. (British India General Insurance Co. Ltd., In re (1970) Vo. 40 CC 554 (Bombay High Court). It is enough that the company has the ability to pay the debt but, if the company chooses not to pay a particular debt, the court would have no choice but to pass an order of winding up. (Madhusudan Gordhandas and Co. V. Madhu Woollen Industries P. Ltd., (1972) 2 SCR 201 , Shantilal Khushaldas and Brothers (P) Ltd., In re Smt. Manulaben Bapalal Gosalia v. Shantilal Khushaldas and Brothers (P) Ltd (1991) 70 CC 195 (Bombay High court). If the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order. (Amalgamated Commercial Traders (Pvt.) Ltd. V.A.C.K. Krishnaswami (1965) 35 CC 456 (SC); Buckley on the Companies Acts, 13th edition, page 451). In order to determine whether the debt is bonafide disputed or not, it is necessary to find out whether the dispute raised by the company is a real and substantial one or it is a mere cover or it is a mere cover or it is an empty dispute with a view to cover up its real inability. (B. Viswanathan v. Seshasayee Paper and Boards Ltd. (1992) 73 CC 136 (Mad)). Whether the disputes which are raised, or are sought to be raised, are bonafide or not, and whether they have been manufactured for the purpose of resisting a case for winding up of the company, will have to be considered and determined by the Court on the facts of each particular case and the material that is available with the court at the time the court is called upon to decide the question. (Ofu Lynx Ltd. V. Simon Carves India Ltd. (1971) 41 CC 174; B. Viswanathan (1992) 73 CC 136 (Mad) A dispute would be substantial and genuine if it is bonafide and not spurious, speculative, illusory or misconceived. The Company court must decide whether the grounds appear to be substantial. The grounds of dispute must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement, and must not be a mere ‘wrangle. If the debt is bonafide disputed, there cannot be “neglect to pay” within the meaning of section 434 (1) (a) of the companies Act, 1956. If there is no neglect, the deeming provision does not come into play, and the winding up on the ground that the company is unable to pay its debts is not substantiated, and nonpayment of the amount of such a bonafide disputed debt cannot be termed as “neglect to pay” so as to incur liability under section 433(e) read with section 434(1) (a) of the companies Act, 1956. (IBA Health (India Private Limited (2010) 10 SCC 553. The defence now sought to be set up is only to avoid complying with the statutory demand under section 434 (1) (a) of the companies Act. As such the respondent must be held to have neglected to pay the amount due, and the petitioner is justified in invoking the jurisdiction of this court under section 433 of the companies Act. The contention that the amount liable to be refunded does not represent a “debt” is only to be noted to be rejected. A debt is a sum of money which is now payable or will become payable in the future by reason of a present obligation, debitum in praesenti solvendum in futuro. (Web v. stenton (1988)11 QB 518; Kudremukh Iron Ore Co V. Kooky Roadways P. Ltd. (1990) (69) CC 178 (Kar.); Banchharam Majumdar v. Adyanath Bhattacharjee (1908) ILR 36 Cal 936 (FB)). A liability depending upon contingency is not a debt in praesenti or in futuro till the contingency has happened. But if there is a debt, the fact that the amount is to be ascertained does not make it any the less a “debt” if the liability is certain and what remains is only the quantification if the amount. A liability depending upon contingency is not a debt in praesenti or in futuro till the contingency has happened. But if there is a debt, the fact that the amount is to be ascertained does not make it any the less a “debt” if the liability is certain and what remains is only the quantification if the amount. (Kesoram Industries and Cotton Mills Ltd. V. CWT AIR 1966 SC 1370 ; Kudremukh Iron Ore Co 1990 (69) CC 178 (Kar.)). The meaning of the expression “debt” may take colour from the provisions of the concerned Act, it may have different shades of meaning. But the following definition is unanimously accepted: “a debt is a sum of money which is now payable or will become payable is future by reason of a present obligation”. The statutory definition of “debt”, in section 434 (1) (a), is a definite sum, viz., exceeding Rs.500. (Newfinds (India) v. Vorion Chemicals and Distilleries Ltd. (1976) 46 CC 87 (Madras High Court). Even if Rs. 29,65,729/-is held not to be due, as Rs. 25,000/-is required to be paid by the petitioner towards cancellation of the allotment, the amount payable to the petitioner would still be Rs. 29,40,729/-which is far in excess of the sum of Rs. 500/-stipulated in section 434 (1) (a) of the Companies Act. In view of the legal fiction under section 434 (1) (a), and as they failed to make payment within twenty one days of receipt of the statutory notice, the respondent company must be deemed to be unable to pay its debts. Existence of an alternate remedy, in terms of the arbitration clause, does not necessitate refusal by this court to exercise its discretionary jurisdiction under section 433(e) of the companies Act. Proceedings under section 433/434 read with section 439 of the companies act are in a completely different jurisdiction than the one under which the remedy or relief can be sought by way of arbitration. Proceedings for winding up are not proceedings for recovery of any amount. (Tirlok Chand Jain v. Swastika Strips (p) Ltd. 1991 (70_ CC 197 (Punjab and Haryana High Court). The jurisdiction for ordering winding – up of a company is a special jurisdiction which has been conferred on this High courts. The object of passing such an order is that the assets of the company should be realized and debts paid expeditiously. (Tirlok Chand Jain v. Swastika Strips (p) Ltd. 1991 (70_ CC 197 (Punjab and Haryana High Court). The jurisdiction for ordering winding – up of a company is a special jurisdiction which has been conferred on this High courts. The object of passing such an order is that the assets of the company should be realized and debts paid expeditiously. The passing of such an order against the company has a serious consequence and, therefore the jurisdiction has been conferred on the high courts. The order of winding-up can be passed on the grounds mentioned in section 433 of the companies Act. It does not appear to be the intention of the legislature that such a power can be conferred on an arbitrator. The petition for winding-up cannot be treated as one for recovery of an amount of debt from the company. (William Jacks & company (India) Limited v. Saraswathi Industrial Syndicate Limited 1986 (59) CC 876 (Punjab and Haryana High court); Hind Mercantile corporation p. Ltd. V. J.H. Rayner & Co. Ltd. 1971 (41) CC 548 (Madras High Court). The jurisdiction of the company court will not be taken away by the mere existence of an arbitration clause. (Maruthi Ltd. (In Liquidation) v. B.G. Shrike and Co. Pvt. Ltd. (1981) 51 Comp Cas 11 (P & H); Haryana Telecom Ltd. V. sterile Industries (India) Ltd. (1999) 5 SCC 688 . The claim in a petition for winding up is not for money. The petition filed under the companies act would be of the effect that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the companies act, is conferred on the court. An arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company. (Haryana Telecom Ltd. (1999) 5 SCC 688 ; Everest Holding Limited v. Shyam Kumar Shrivastava (2008) 16 SCC 774; Prime century City Developments Pvt. Ltd. V. Ansal Buildwell Ltd. 2003 (113) CC 68 (Delhi High Court). Even if an arbitration clause subsists between the parties, the High Court would have unfettered powers to entertain winding up petitions. (Madhaya Pradesh Iron and Steel co. v. G.B. Springs (P) Ltd. 2003 (117) CC 327 (Delhi High Court). Even if an arbitration clause subsists between the parties, the High Court would have unfettered powers to entertain winding up petitions. (Madhaya Pradesh Iron and Steel co. v. G.B. Springs (P) Ltd. 2003 (117) CC 327 (Delhi High Court). In terms of the arbitration agreement, the arbitrator can always find out and adjudicate whether or not a company is functional and, if it was not functional, he could always find out the nature and status of its assests and can also issue direction and pass orders regarding dues and liabilities and also for taking recourse to the appropriate remedy. (Everest Holding Limited (2008) 16 SCC 774). There is no conflict between the statutory relief of winding up and of the contractual right to have disputes settled by arbitration. Once a bonafide defence is shown to exist, arbitration will be the efficacious and proper remedy. Where, however, the defence is malafide or a moonshine, an arbitrable dispute would not exist and the company judge would have the power to pass appropriate orders. (Madhaya Pradesh Iron and Steel Co. 2003 (117) CC 327 (Delhi High Court). Reliance placed by the respondents on Kitti Steels Limited (1976) Order in C.P. No.62 of 2008 dated 03.09.2009 to contend that the bar under section 443 (2), applicable to winding up petitions under section 433 (f), would also apply to petitions filed under section 433 (e), is misplaced. Section 433 of the Act provides for the circumstances in which a company may be wound up by the court. There are six recipes in this section, the sixth, namely, that a company may be wound up by the court if the court is of the opinion that it is just and equitable that the company should be wound up. The sixth clause, namely “just and equitable”, is not to beread as being ejusdem generic with the preceding five clauses. While the five earlier clauses prescribe definite conditions to be fulfilled for the one or the other to be attracted in a given case, the just and equitable clause leaves the entire matter to the wide and wise judicial discretion of the court. The only limitations are the force and content of the words themselves, ‘just and equitable’. Section 433 (f) has to be read with section 443 (2) of the Act. (Hind Overseas Private Limited v. Ragunath Prasad Jhunjhunwalla (1976) 3SCC 259). The only limitations are the force and content of the words themselves, ‘just and equitable’. Section 433 (f) has to be read with section 443 (2) of the Act. (Hind Overseas Private Limited v. Ragunath Prasad Jhunjhunwalla (1976) 3SCC 259). A contrast between the provisions under clause (A) to (e) of section 433 of the act on one hand and clause (F) thereof on the other makes it abundantly clear that the statute itself created a bar under section 443(2) of the Act from entertaining a winding-up petition on ‘just and equitable’ grounds when an alternative remedy is available. (K. Mohan Babu v. Heritage Foods India Ltd. Hyderabad (2001) 5 ALD 800 . The twin ingredients to be satisfied, under section 443 (2) of the Act, for the court to refuse to make an order of winding up on just and equitable grounds, is the formation of the opinion that (i) some other remedy is available to the petitioner; and (ii) he is acting unreasonably in seeking to have the company wound up instead of pursuing the other remedy. Section 443 (2) does not bar exercise of jurisdiction, but further limits exercise of discretion under section 43(f) of the act. It is only if the other available remedy is not efficacious can the discretionary jurisdiction of the court under section 433 (f) be invoked. (P Sridevi W/o P Murali Krishna v. Cherishma Housing Private Ltd. 2008 LAP 340). In M/s. Kitti Steels Limited Order in C.P. No.62 of 2008 dated 03.09.2009, this court held that section 443 (2) of the act empowered the court to refuse to make an order of winding up, if it was of opinion that some other remedy was available to petitioner, and the petitioner was acting unreasonably in seeking to have the company wound up instead of pursuing the other remedy; though the petitioner had obtained a decree from the civil court, which was the basis for filing a winding up petition, the decree was in appeal; and, in such a situation, a winding up petition under section 433 (e) of the Act would not lie. The judgment in Kitti Steels Order in C.P. No.62 of 2008 dated 03.09.2009 cannot either be read, or to be understood, as extending the requirement of compliance with section 443 (f), also to a petition under section 433(e) of the Act. The judgment in Kitti Steels Order in C.P. No.62 of 2008 dated 03.09.2009 cannot either be read, or to be understood, as extending the requirement of compliance with section 443 (f), also to a petition under section 433(e) of the Act. Section 443 (f) of the companies Act enables the court to wind up a company if it is of the opinion that it is just and equitable that the company be wound up. It is only where winding up is sought under section 433(f) on “just and equitable grounds” would section 443 (2) enable this court to refuse to make an order of winding up, if it is of the opinion that some other remedy is available to the petitioner and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy. The legislature, in its wisdom, has chosen to prescribe the requirement of compliance with section 443(2) only where a company is sought to be wound up on “just and equitable grounds” under section 433 (f) of the Act. It has consciously chosen not to extend this requirement to any of the other circumstances in clause (a) to (e) of section 433. Extending the requirement of section 443 (2), which the legislature has prescribed only to a petition filed for winding up under section 433 (f) “on just and equitable grounds”, also to a petition under section 43 (e) of the companies act would either require deletion of the words “just and equitable” or adding the words “unable to pay its debts” in section 443 (2) of the Act. Courts have adhered to the principle that effort should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute, as being inapposite suplussage, if they can have a proper application in circumstances conceivable within the contemplation of the statute. (Gururdevdatta VKSSS Maryadit v. State of Maharastra 2001 (4) SCC 534, Manohar lal v. Vinesh Anand (2001) 5 SCC 407 ). When the legislative intent is found specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory. (Bharathidasan University v. All India Council for Technical education (2001) 8 SCC 676 ). When the legislative intent is found specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory. (Bharathidasan University v. All India Council for Technical education (2001) 8 SCC 676 ). Effect should be given to all the provisions and a construction that reduces one of the provisions to a “dead letter” must be avoided. (Anwar Hasan Khan v. Mohd. Shafi (2001) 8 SCC 540 ). Any interpretation which results either in addition or deletion of words or as rendering any statutory rule redundant must be avoided. (Banarasi Debi v. ITO (1964) 7 SCR 539 ; Attorney – General V. Carlton Bank (1899) 2 QB 158; V. Narasimha Rao v. The Government of Andhra Pradesh Judgment in W.P. No. 25583 of 2010 dated; 31.01.2012). It is also well settled that observations in judgments should not be read out of context. A word here or a word there should not be made the basis for inferring inconsistency or conflict of opinion. Law does not develop in a casual manner. It develops by conscious, considered steps. (Sri Konaseema Co-operative central bank ltd. V. N. Seetharama Raju AIR 1990 AP 171 ). Observations of courts are neither to be read as Euclid’s theorems nor as provisions of a statute, and that too taken out of their context. The observations must be read in the context in which they appear to have been stated. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. (Bharat Petroleum Corportaion Ltd. V. N.R. Vairamani (2004) 8 SCC 579 , Ashwani Kumar Singh v. U.P. Public Service commission 2003 (11) SCC 584 . Union of India v. Amritlal Manchanda 2004 (3) SCC 75 ; P Sridevi W/o P Murali Krishna 2008 LAP 340; and Deepak Bajaj v. State of Maharastra (2008) 16 SCC 14). The only other contention which necessitates examination is whether commercial solvency would justify refusal to exercise discretion under section 433(e) of the companies act. An examination of the company’s solvency may be a useful aid in determining whether refusal to pay the debt is a result of a bonafide dispute as to the liability or whether it reflects an inability to pay. An examination of the company’s solvency may be a useful aid in determining whether refusal to pay the debt is a result of a bonafide dispute as to the liability or whether it reflects an inability to pay. If there is no dispute as to the company’s liability, it is difficult to hold that the company should be able to pay the debt merely by proving that it is able to pay the debts. If the debt is an undisputed owing, then it should be paid. If the debt is an undisputed owing, then it should be paid. If the company refuses to pay, without good reason, it should not be able to avoid the statutory demand by proving, at the statutory demand stage, that it is solvent. The law should be allowed to proceed and , if the demand is not met and an application for liquidation is filed under section 439 in reliance of the presumption under section 434 (1) (a) that the company is unable to pay it debts, the law should take its own course and the company will have an opportunity on the liquidation application to rebut that presumption. In other words, commercial solvency can be seen as relevant as to whether there is a dispute as to the debt, not as a ground in itself, that means it cannot be characterized as a stand alone ground. (IBA Health (India) Private Limited (2010) 10 SCC 553). While the respondent is entitled to rebut the statutory presumption under section 434 (1) (a), of its inability to pay its debts, by producing evidence to show that it solvent, commercial solvency is not a stand alone requirement and must be examined in the context of whether or not a bonafide dispute exists. In cases where, (As in the present case), there is no bonafide dispute regarding the “debt due” and payable by the respondent to the petitioner, commercial solvency cannot be considered as a stand alone ground justifying refusal to exercise discretion under section 433 (e) of the companies act for , if such a consequence is to be the result in every case, a solvent company could, at its mere whim, refuse to make payment to its creditors which would render section 433 (e) read with section 434 (1) (a) of the companies Act redundant. As held herein above no provision of a statute can be read as being redundant or be treated as inapposite surpplasage. While the fiction under section 434 (1) (A) that a company must be deemed to be unable to pay its debts can be rebutted, by producing, evidence to the contrary before this court, the respondent company, for reasons best known, has chosen not even to file its audited balance sheet or profit and loss account. It has chosen only to file an unaudited balance sheet and profit and loss account as on 30th September, 2010. While unaudited financial statements cannot be accepted as proof of commercial solvency of the respondent company, a bare reading of the said unaudited balance sheet and profit and loss account would show that the respondent company had suffered a loss of Rs. 38,28,51,371/-before tax for the year ending 31.03.2010 and, after adding the balance brought forward from the previous year, the loss carried to the balance sheet for the year ending 31.03.2010 is shown as Rs. 12,33,24,260/-. Even, for the quarter ending 30.09.2010, the respondent is shown to have suffered a loss of Rs. 2,48,07,076/-. The respondent’s claim of its financial strength is not borne out from the document s placed before this court. Viewed from any angle, I see no reason to refuse to exercise discretion under section 433(e) of the Act to admit the company petition. The company petition is admitted. As required under rule 24 read with rule 99 of company court rules, 1959, admission of the company petition is required to be advertised in two daily new papers. The petition shall be advertised in Indian Express (English Daily) and Andhra Prabha (Telugu Daily), Hyderabad editions on or before 10.06.2012. Sri M.S. Srinivas Ayyangar, Learned Counsel for the respondent, would submit that the respondent company is having discussions, with the petitioner for an amicable resolution for their disputes, and this court should atleast defer advertisement. The advertisement of the company petition shall be deferred till 24.04.2012. It is made clear that, if no application is filed under Rule 100 of the company court rules for withdrawal of the company petition before that date, the direction as to advertisement shall be complied with by the petitioner on or before the date stipulated hereinabove. Post on 11.06.2012 for “proof of publication”.