Judgment :- 1. This company Petition is filed under section 433 (e) & (f), read with section 439 of the companies Act 1956 and Rule 95 of the Company (court) Rules, 1959, for winding up of the respondent company. The company petition was filed, on behalf of the petitioner, by its senior general manager Sri. S. Seshan. In the company petition it is stated that Sri. R. Seshan was duly empowered under the power of attorney dated 18.2.2011 to file the present winding up petition, and to do all acts, matters and things in relation thereto. 2. The petitioner is a company incorporated under the Companies Act, 1956 with its registered office at Chennai. It is engaged in the business of freight forwarding and customs clearance. The respondent company was incorporated under the companies act on 18.12.1992, and its registered office is at Hyderabad. Its authorized share capital is Rs. 150 crores divided into fifteen crore equity shares of Rs. 10/-each. Its issued, subscribed and paid up capital as on 31.3.2005 was Rs. 20.00 lakhs divided into two lakh equity shares of Rs. 10/-each. The main objects of the respondent company is to carry on business of printing, publishing, and circulating or otherwise dealing in daily, weekly, fortnightly or monthly newspapers, magazines, periodicals, journals, books of all kinds or other publications, to start, acquire, print and generally to carry on the business of owners of newspapers and magazines and to carry on the business of manufacturer, importer, exporter and dealer in all kinds and classes of paper, board and pulp, and all kinds of articles in the manufacturing of which any form of paper, board and pulp is involved. 3. 3. It is the petitioner’s case that, in the course of their business, they approached the respondent which utilized their services to handle their sea import consignments; the respondent company released its order dated 1.1.2010 in favour of the petitioner for clearing its import consignment at ICD-Hyderabad, and for providing certain services, in their letter dated 1.1.2010 the respondent agreed to make payment on the 30th day from the date of submission of bills, and to release the original bank documents within time to enable the petitioner to do the needful; the petitioner was regularly clearing the respondents cargo from customs authorities; they cleared substantial containers within a period of six months ever since they started handling the respondents business; and though the containers had arrived as per schedule, the respondent company had delayed dispatching documents from the bank i.e., in getting clearance from their bankers. A statement, giving details of the shipment, the arrival date, the document received date, and the customs clearance date, is furnished. The petitioner would submit that they received an e-mail on 15.6.2010 from the respondent company requesting them to clear the documents, and release newsprint from ICD-Hyderabad without delay; the petitioner was assured that the respondent would be arranging payment within 10 to 15 days after the due date of the petitioner’s invoices without fail, despite which the respondent had failed to clear the dues; on coming to know, in the first week of July, 2010, that the respondent was clearing its goods through another agent, the petitioner informed the respondent, by e-mail dated 2.7.2010, that Rs.21.00 lakhs was due and payable to them beyond 30 days, and Rs. 10.00 lakhs was the amount due and payable for a period less than 30 days; the petitioner, thereafter, received a cheque for Rs. 1,89,000/-from the respondent leaving a balance of Rs. 30,62,583/-as still due and payable; as there were huge outstanding dues, payable by the respondent company, the petitioner had returned two documents informing the respondent to make their own arrangements to clear the consignments citing financial unviability; their representative Sri. 1,89,000/-from the respondent leaving a balance of Rs. 30,62,583/-as still due and payable; as there were huge outstanding dues, payable by the respondent company, the petitioner had returned two documents informing the respondent to make their own arrangements to clear the consignments citing financial unviability; their representative Sri. R.Seshan had met the respondent company’s Executive Director during July, 2010; during the course of discussions the petitioner had informed that they would absorb the cost of delay in handing over the filed documents, thereafter they addressed e-mail dated 8.7.2010 informing the respondent that they were willing to bear the cost of delay for Rs. 1,10,799/-(actuals), subject to the respondent informed their representative that they would clear the total outstanding dues, if the petitioner agreed to bear Rs. 2,60,000/-towards the cost of delay in clearance of the two documents/return thereof; the petitioner confirmed their willingness by e-mail dated 16.7.2010, and called upon the respondent to pay the outstanding dues of Rs. 30,62,583/-with interest at 18% per annum from the date of default till realization; and though, the respondent-company received the statutory notice dated 9.12.2010, they neither replied thereto nor did they clear the admitted outstanding dues. The petitioner would assert that the respondent had neglected to pay the admitted outstanding dues of Rs. 30,62,583/-, along with interest at 18% per annum, for the services, rendered by them to the respondent company; and their inability to pay the admitted debt necessitated their being wound up under the provisions of the Companies Act. The petitioner would also contend that the respondent company was facing financial problems with accumulated losses, and was heavily indebted to various other creditors; the respondent company was not in a position to meet their day to day statutory and other obligations as and when they fell due; the respondent was insolvent; and was not in a position to honour its current liabilities as a running company. 4. In the counter affidavit filed by the Executive Director of the respondent company it is stated that Sri. 4. In the counter affidavit filed by the Executive Director of the respondent company it is stated that Sri. R.Seshan, the power of attorney holder of the petitioner company, is not entitled to represent and file the company petition unless and an application is filed before this Court under Rules 32 of the Civil Rules , 1959; neither has an application been filed, nor has leave been obtained from this court, by the power of attorney holder to represent the petitioner company; and the company petition was liable to be returned for such non-compliance. It is further stated that the executants of the power of attorney, in favour of Sri. R. Seshan, has not been authorized by the Board of Directors of the petitioner company or by its Articles of Association; the petitioner had failed to file the Board resolution and / or Articles of Association to show that authority was vested in the executants to appoint Sri. R. Seshan as the power of attorney holder of the petitioner-company; the debt of Rs. 30,62,583/-. Claimed by the petitioner as due from the respondent, appeared to be based on certain unpaid bills as indicated in the petition; and the petitioner had failed to file the bills to enable the respondent to verify the services rendered thereunder, or the payment terms including the terms with regards the jurisdiction of this court to adjudicate the disputes raised therein. While denying that they were unable to pay their debts, the respondent would submit that the requisite pleadings, as stipulated under Rule 95 read with Form 46 of the Rules, were not taken except unsupported bald allegations; the petitioner had presumed that the financial position of the respondent company was not satisfactory, and it was not in a position to pay up the admitted debts of its creditors; the respondent had not admitted the debt claimed, and no document to that effect was filed; the petitioner had failed to prove the ingredients of section 433 (e) of the companies Act, their failure to reply to the statutory notice cannot per se result in the presumption of their inability to pay the debt, unless the petitioner satisfied the court that the presumption, as stipulated in Section 434 (1) (c) of the companies Act, should be drawn, the debt claimed against the respondent was based on the statement of accounts dated 15.3.2011; prior to the filing of the company petition, the petitioner had not communicated the same to the respondent for reconciliation; the petitioner had failed to file the documents referred to in the statement of accounts and / or copy of the bills to enable the respondent even now to verify and advice payment on reconciliation, and if the amount claimed was found to be correct; and the debt claimed was without filing supporting documents i.e., statement of accounts and copies of bills. According to the respondent, the petitioner did not clear their cargo as per the time schedule; their e-mail dated 8.7.2010 demonstrated that there was a delay on their part in clearing the cargo; the cargo/customs clearance, and the bills issued thereon, had to be reconciled; if all the related documents, in support of the debt claimed by the petitioner company, such as copies of bills and the documents referred to in the statement of accounts, were furnished to them, the respondent company was ready and willing to settle and pay the amount so arrived at after reconciliation, and after deducting the admitted cost of the delay in clearing the cargo of Rs. 1,10,799/-as agreed to by the petitioner; the respondent had earlier paid amounts, after reconciliation, including Rs. 1,89,000/-as admitted by the petitioner, in so far as payment of outstanding bills, as claimed by the petitioner company, of Rs. 1,10,799/-as agreed to by the petitioner; the respondent had earlier paid amounts, after reconciliation, including Rs. 1,89,000/-as admitted by the petitioner, in so far as payment of outstanding bills, as claimed by the petitioner company, of Rs. 30, 62,583/-is concerned, the respondent had an open mind to settle and pay all the amounts on furnishing the bills, and after reconciliation of the accounts, the petitioner had failed to maintain the time schedule to clear the cargo as a result of which the respondent had suffered business loss; the petitioner had admitted and agreed to pay Rs. 1,10,799/-or Rs. 2,60,000/-vide e-mail; the services rendered by the petitioner to the respondent under contract was required to be examined with reference to the relevant bills, its acknowledgement number, the delay which had occurred in clearing the cargo, the damage caused to the respondent on account of such delay etc., and the respondent was ready and willing to pay the amount found due. It is also stated that, unless the amounts due under the contract was arrived at by way of reconciliation of accounts, the question of payment by the respondent to the petitioner and/ or the question of dodging payment claimed by the petitioner did not arise; at any rate the respondent company was ready and willing to settle the amounts if the petitioner furnished all the documents relied on by them in support of the debt, and after reconciliation; the petitioner should co-operate for timely settlement and payment; the disputes between the parties, in relation to the contract, could be resolved only after reconciliation of the accounts; and whatever amount was found due from out of the said process, the respondent was ready and willing to pay the same as it is a running and profit making company with a good reputation; the petitioner had no vested right to seek winding up, of a running and profit making company like the respondent, on the basis of a single debt claimed without, prima facie, proving the same by the filing the requisite documents, including admission of the debt by the respondent, at any rate the petitioner had an effective alternative remedy to claim, prove and recover its single debt by filing a civil suit, rather than seeking an order to pull down the entire company at the cost of the shareholders, creditors, employees, readers of newspapers/magazines being published by the company etc; the respondent was established in the year 1994, and has been carrying on business for more than 16 years having a paid up capital of Rs. 15.00 crores, and a turnover of Rs. 111.94 a Crores, it is a profit making company; and the respondent is regularly paying the enforceable debts due to all the statutory authorities, secured and unsecured creditors, apart from paying salaries to its work force in addition to the taxes/duties to the exchequer. Reliance is placed on Hind Overseas Pvt. Ltd. V. Raghunath Prasad Jhunjhunwalla (1976) 46 CC91 (SC); Rishi Enterprises In re (1992) 73 CC 271 (Gujarat); Pradeshiya Industrial & Investment Corporation of U.P. v. North India Petrochemicals Ltd (1994) 3 SCC 348 ; Kanchanaganga Chemical Industries v. Mysore Chipboards Ltd (1998) 91 CC 646 (Karnataka); and Kitti Steels Ltd v. Sanghi Industries 2010 (4) ALD 116 . 5. 5. In their reply affidavit, the petitioner would state that the counter was filed by the respondent with false and baseless allegations to avoid the liability of Rs. 30,62,583/-towards clearance of their sea import consignments at ICD – Hyderabad, and for providing certain services i.e., shipping line payments, concor payments, and collecting and handling cargo; the respondent was denying liability only to avoid payment; non compliance of Rule 32 of the Civil Rules of Practice, and Rule 21 of the Companies (Court) Rules 1959, was a curable irregularity and not an illegality; no objection was taken by the Registry in this regard before the company petition was numbered, as such, no objection could now been taken; the Managing Director of the petitioner company had been authorized, by the resolution of the Board of Directors dated 01.02.2011, to appoint an agent for commencing and prosecuting company petitions; consequent thereto, the Managing Director had appointed Sri R. Seshan as a special attorney by way of the power attorney dated 18.2.2011; the leave of this court was sought for filing the Board resolution dated 1.2.2011 in C.A. No.1667 of 2001; and this court was pleased to order the said application on 15.11.2011. The petitioner would further state that they had cleared the consignments of the respondent on receipt of the documents; they had, thereafter, raised invoices and had forwarded the same to the respondent (Copies of the invoices were filed along with the reply affidavit as Ex.P.12); the respondent had neither disputed the claim of the petitioner by denying liability, nor did they reply to the statutory notice; only as an after thought did they raise the contention that they were a profit making company, it is only because the respondent had failed to release the outstanding dues that the petitioner was constrained to return two documents due to financial unviability; this did not justify the respondent’s contention that the petitioner had failed to clear the cargo of the respondent within time, the petitioner had cleared substantial cargo during the period of the transactions, the pleadings clearly demonstrated that the respondent had not denied existence of the debt; the respondent had failed to pay its dues without reasonable excuse, on the debt being claimed by the petitioner, the respondent had not conclusively settled or compounded it; and as such, a clear undisputable debt existed which would suggest that a prima facie case for winding up of the company has been made out. RIVAL CONTENTIONS 6. Sri. RIVAL CONTENTIONS 6. Sri. C.R. Sridharan, Learned Counsel for the petitioner, would submit that the petitioner does not press for the relief of winding up under section 433 (f) of the companies Act, and their claim is limited to section 433 (e) thereof; failure to seek leave of this court under Rule 21 of the Companies Court Rules, 1959 is merely a procedural irregularity and, since leave was subsequently granted, the irregularity, in following the prescribed procedure, has been cured; the petitioner has complied with the requirement of Rule 95 of the Company court Rules, 1959; failure on the part of the respondent to pay the amount due within three weeks from the date of receipt of the statutory notice would require the court to deem that the respondent chose not even to reply to the statutory notice, issued under section 434 (1) (a) of the companies Act, let alone make payment of the amount due to the petitioner within three weeks from the date of receipt of the said notice, was proof of the respondent having neglected to pay the amount due; it is only because the respondent had neglected to pay the amount due that the petitioner had invoked the jurisdiction of this court under section 433 (e) of the Act; in their counter-affidavit, the respondent does not deny its liability, and merely takes shelter under a vague plea of the need to reconcile the accounts; the contention of the respondent that invoices and other documents were not made available is only a ruse to avoid payment of the amount due; the petitioner had not only sent the invoices periodically to the respondent, but had also enclosed all the invoices along with their reply affidavit filed before this court; the dispute sought to be raised by the respondent was not bonafide, and was a mere moonshine; section 443 (2) is applicable only to proceedings for winding up under section 433(f), and not to winding up proceedings under section 433 (e) of the Act; and the respondent, having failed to pay the amounts legitimately due to the petitioner , cannot now contend that the petitioner would be relegated to invoking the remedy of a civil suit. Learned counsel would further submit that clauses (a) to (c) of section 434 (1) of the act are in the alternative, and not cumulative, and since the requirements of 434 (1) (a) of the Act are satisfied, the respondent must be deemed to be unable to pay its debts. 7. On the other hand Sri Ch. Ramesh Babu, Learned Counsel for the respondent, would submit that the power of attorney given to Sri. R. Seshan, (Deponent of the affidavit verifying the petition), was by Sri. R. Ram Kumar who himself did not hold a power of attorney on behalf of the Board of Directors of the petitioner company; Sri. R. Ram Kumar could only have appointed Sri R. Seshan as his special power of attorney, and ask him to do what the Board had asked Sri R. Ram Kumar to do; Sri R. Ram Kumar could not again stipulate what Sri R. Seshan should do; as the vakalat filed on behalf of the petitioner has been signed by Sri R. Seshan, all proceedings subsequent thereto are a nullity; since R. Seshan, has not been empowered to file the company petition, the company petition is liable to be dismissed in limini; Rules 95 of the company court rules, 1959 has not been complies with as the company petition does not satisfy all the requirements of the said Rule; the order of this court, in C.A. No. 1667 of 2011, is not an order granting relief; the petitioner had neither filed the bills nor were they coming forward for settlement of the dues; the petitioner has an alternative remedy of filing a civil suit without exhausting which he cannot invoke the jurisdiction of this court under section 433 (e) of the companies Act; the respondent has not admitted its debt; the petitioner has not pleaded that the debts of other creditors have not been paid, and that the respondent is commercially insolvent; and all clauses, i.e., Clauses (a) to (C) of section 434 (1) of the Act, must be satisfied for a company to be deemed to be unable to pay its debts, and it would not suffice if merely clause (a) of section 434 (1) is complied with . IS THERE A BONAFIDE DISPUTE REGARDING THE DEBT DUE FROM THE RESPONDENT TO THE PETITIONER? 8. In an application for winding up, allegations in the petition are of primary importance. IS THERE A BONAFIDE DISPUTE REGARDING THE DEBT DUE FROM THE RESPONDENT TO THE PETITIONER? 8. In an application for winding up, allegations in the petition are of primary importance. A prima facie case has to be made out before the court can take any action in the matter. Even admission of a petition, which will lead to advertisement of the winding-up proceedings, is likely to cause immense injury to the company if ultimately the application has to be dismissed. (Raghunath Prasad Jhunjhunwalla (1976) 46 CC91 (SC). A dispute would be substantial and genuine if it is bonafide and not spurious, speculative, illusory or misconceived. The company court, at the stage of admission, is not expected to hold a full trial of the matter. It must decide whether the ground appear to be substantial. The grounds of dispute; of course, must not consist of some ingenious mask invented t deprive a creditor of a just and honest entitlement and must not be a mere wrangle. If the creditor’s debt is bonafide disputed on substantial grounds. The court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of the winding up procedure. The company court always retains the discretion, but a party to a dispute should not be allowed to use the threat of a winding up petition as a means of forcing the company to pay a bonafide disputed debt. (IBA Health (India) Private Limited v. Info-drive Systems SDN. BHD. (2010) 10 SCC 553. To attract section 433 (e), two rules are well settled. First, if the debt is a bonafide disputed and the defence is a substantial one, the court will not wind up the company. 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 that particular debt. Where, however, there is no doubt that the company owes the creditor a debt entitling him to a winding – up order, but the exact amount of the debt is disputed, the court will make a winding – up order without requiring the creditor to quantify the debt precisely. The machinery for winding-up will not be allowed to be utilized merely as a means for realizing the debt due from a company. (Madhusudan Gordhandas and Co. The machinery for winding-up will not be allowed to be utilized merely as a means for realizing the debt due from a company. (Madhusudan Gordhandas and Co. v. Madhu Woollen Industries Pvt. Ltd. (1971) 3 SCC 632 ). A winding –up petition is not a legitimate means of seeking to enforce payment of the debt which is bonafide disputed by the company. A petition presented ostensibly for a winding-up order but really to exercise pressure will be dismissed, under circumstances may be stigmatized as a scandalous abuse of the process of the court. If the defence raised by the company is a substantial one, and not a mere moonshine, it has to be finally adjudicated upon on merits before the appropriate forum. (Pradeshiya Industrial & Investment Corporation of U.P. (1994) 3 SCC 348 ; Amalgamated Commercial Traders (P) Ltd. V. A.C.K. Krishnaswami (1965) 35 CC 456 (SC) ; Madhusudan Gordhandas and Co. (1971) SCC 632; Mediquip Systems (P) Ltd. V. Proxima Medical Systems (GMBH) (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 AIR SCW 5324; Vijay Industries v. NATL Technologies Ltd. (2009) 3 SCC 527 ; ( AIR 2009 SC 1695 ; 2009 AIR SCW 1229 ; IBA Health (India) Private Limited (2010) 10 SC 553). A winding-up petition is not a legitimate means of seeking to enforce payment of a debt which is bonafide disputed by the company. If the debt is not disputed on some substantial ground, the court/tribunal may decide it on the petition and make the order. Secondly, if the debt is bonafide disputed, there cannot be “neglect to pay” within the meaning of section 434 (1) (a) of the companies Act. 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. Thirdly, a debt about the liability to pay which, at the time of the service of within the meaning of section 434 (1) (a), and non-payment of the amount of such a bonafide disputed debt cannot be termed as “neglect to pay” the same so as to incur the liability under section 433 (e) read with section 434 (1) (a) of the companies Act. (Mediquip systems (P) Ltd., (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 AIR SCW 5324; IBA Health (India) Private Limited (2010) 10 SCC 553 ; Softsule (P) Ltd. Re (1977) 47 CC 438 (BOM). The following are the principles relating to bonafide disputes (i) If there is a dispute as regards payment of the sum towards principal, (however small that sum may be), a petition for winding up is not maintainable, and the necessary forum for determination of such a dispute existing between parties is a Civil Court; (ii) the existence of a dispute with regard to payment of interest cannot be construed as existence of a bonafide dispute relegating the parties to a Civil Court and, in such an eventuality, the Company Court itself is competent to decide such a dispute in winding up proceedings; and (iii) if there is no bonafide dispute with regards the sum payable toward the principal, it is open to the creditor to resort to both the remedies of filing a civil suit as well as filing a petition for winding up of the company. (Mediquip Systems (P) Ltd. (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 AIR SCW 5324; Tube Investments of India Ltd. V. Rim and Accessories (P) Ltd. (1990) 3 Comp LJ 322). 9. If the debt is bonafide disputed, and the defence is a substantial one, the court will not wind up the company. The principles on which the court acts are: (i) that the defence of the company is in good faith and one of substance; (ii) the defence is likely to succeed in point of law and (iii) the company adduces prima facie proof of the facts on which the defence depends. (Mediquip Systems (P) Ltd. (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 AIR SCW 5324; Pradeshiya Industrial & Investment Corporation of U.P. (1994) 3 SCC 348 ; Madhusudan Gordhandas (1971) 3 SCC 632 ). 10. It is evident from the documents filed along with the company petition that the petitioner, vide letter dated 29.12.2009, had informed the respondent of their offer for rendering services relating to handling charges for import consignments from abroad to ICD, Hyderabad, and that the credit period was 30 days from the date of submitting bills to the respondent company. The said letter dated 29.12.2009 was received by the respondent on 30.12.2009. The said letter dated 29.12.2009 was received by the respondent on 30.12.2009. The respondent, by letter dated 1.1.2010, released an order in the petitioner’s favour for clearing the respondent’s sea import consignments at ICD-Hyderabad by providing the following services (i) paying at shipping line payment; (ii) paying concor payments; (iii) collecting delivery order from the shipping line; and (iv) customs clearance and handing over cargo to the respondent’s site. The respondent agreed that the payment terms would be 30 days from the date of submitting the bills. They also agreed to the rates offered by the petitioner for the aforesaid services. Again, by e-mail dated 15.6.2010, the respondent informed the petitioner that they would arrange payment within 10 to 15 days after the due date for the petitioner’s invoices positively and , hence, the petitioner should clear the documents, and release newsprint from ICD-Hyderabad immediately, without delay. The petitioner, vide e-mail dated 3.6.2010, informed the respondent that their invoices, pending over 30 days, was for Rs. 21.00 lakhs, and for less than 30 days, was for Rs. 10.00 lakhs. The petitioner, vide e-mail dated 16.7.2010, agreed to bear Rs. 2.6 lakhs towards belated clearance of two documents. As no payment was forthcoming, statutory notice dated 9.12.2010 was issued to respondent under section 434 (1) (a) of the companies Act whereby the respondent was informed that the petitioner had been clearing the respondent’s cargo from customs authorities; they had clear about 85 x 40 containers in a period of six months; and though the containers had arrived as per schedule, there were delays from the respondent’s end in dispatching the documents from the Bank i.e., in the respondent getting necessary clearances. A tabular statement, giving details of the containers, the date on which they arrived at Hyderabad, the date on which the documents were received from the respondent, and the date on which the goods were cleared from customs, was furnished in the said statutory notice. The respondent was further informed that the petitioner had cleared about 14 documents between 13.4.2010 to 12.5.2010 covering 51 containers; they had addressed e-mail dated 2.7.2010; they had received a cheque for Rs. 1,89,000/-from the respondent, leaving a huge balance of Rs. The respondent was further informed that the petitioner had cleared about 14 documents between 13.4.2010 to 12.5.2010 covering 51 containers; they had addressed e-mail dated 2.7.2010; they had received a cheque for Rs. 1,89,000/-from the respondent, leaving a huge balance of Rs. 30,62,583/-still due and payable; and as such a huge outstanding was due from the respondent’s end, the petitioner was forced to return two documents asking the respondent to make arrangements for its clearance; thereafter the petitioner’s representative had met the respondent’s Executive Director and, during the course of discussions, the petitioner agreed to bear the cost of the delay in handing over two documents amounting to Rs. 1,10,799/-; the respondent had assured that they would pay the total outstandings if the petitioner agreed to bear Rs. 2.6. lakhs towards delay in clearance of the two documents, the petitioner had confirmed that they would absorb the cost of Rs. 2.60 lakhs vide e-mail dated 8.7.2010, despite which the respondent had failed to clear the outstanding dues; and as such Rs. 30,62,583/-, along with interest at 18% per annum from the date of default till the date of realization, was due. The respondent was informed that, if they failed to make payment within 21 days from the date of receipt of the notice, the petitioner would be constrained to initiate legal proceedings including filing of a petition for winding up under the Companies Act. Though this statutory notice was received by the respondent on 15.12.2010, no reply was forthcoming thereto and eventually the present company petition was filed on 15.3.2011. 11. It is necessary to note that, along with the company petition, the petitioner furnished the accounts statement of the respondent in their books of accounts. The said statement shows the principal amount due from the respondent was for Rs. 30,62,583- 28. Along with their reply affidavit dated 18.11.2011 the petitioner, while enclosing copies of all the invoices for the services rendered by them to he respondent, asserted that the respondent was put to strict proof that they had not received the invoices; and that copies of the invoices were being filed for perusal of this court as Ex.P.12. In their counter affidavit the respondent merely stated that the accounts were required to be reconciled, and they had an open mind to settle all the amounts, on the bills being furnished, and after reconciliation of the accounts. In their counter affidavit the respondent merely stated that the accounts were required to be reconciled, and they had an open mind to settle all the amounts, on the bills being furnished, and after reconciliation of the accounts. Though the statement of account was furnished along with the company petition, and the bills (invoices) were furnished along with the reply affidavit dated 18.11.2011, the respondent neither came forward with their statement of account nor have they stated what is the amount, if any due and payable by them to the petitioner. Even if the sum of Rs. 2.60 lakhs, which the petitioner agreed to bear for belated clearance of two documents if payment of the entire outstanding dues was made by the respondent forthwith, is deducted from the amount due of Rs.30,62,583/-, still a sum of Rs. 28,02,583/-remains due towards the principal from the respondent. In addition thereto, the petitioner claims interest at 18% per annum on the outstanding dues from the date of default till the date of payment. It is also necessary to note that the respondent did not even send their reply to the statutory notice issued by the petitioner on 9.12.2010 which was received by them on 15.12.2010. Even if the respondent’s contention of the bills and accounts statement not being furnished earlier is accepted, the accounts statement has been filed along with the company petition, and copies of the bills/invoices were furnished along with the petitioner’s reply affidavit. Except to contend that the accounts needed to be reconciled, the respondent has not even stated whether or not the said amount is due and payable by them to the petitioner; and if not what is the amount due and payable by them, and the details thereof. The expression “neglected to pay the sum demanded” in section 434 (1) is not equivalent to the word “omission”. Neglected to pay the debt on demand is omission to pay without reasonable cause (International Inc. V. Nitul Data Systems P. Ltd. (1997) 88 Com. Cas.234(Del.). Where there is refusal to pay without any reasonable excuse it must be held that the company has neglected to pay the amount due within the meaning of section 434 (1) (a) of the Act. The invoices raised by the petitioner on the respondent is for services rendered by them to the respondent. Cas.234(Del.). Where there is refusal to pay without any reasonable excuse it must be held that the company has neglected to pay the amount due within the meaning of section 434 (1) (a) of the Act. The invoices raised by the petitioner on the respondent is for services rendered by them to the respondent. The unpaid amount, under these invoices, is a debt due from the respondent to the petitioner and, as there is omission by the respondent to pay the said amount to the petitioner without reasonable cause, the respondent must be held to have neglected to pay the sum demanded by the petitioner. Prima facie the respondent is due; and is liable to pay, the debt of Rs. 30,62,583/-to the petitioner; and even if the amount agreed to the reduced by the petitioner of Rs. 2.60 lakhs is deducted, the respondent is still unable to pay the petitioner a sum of Rs. 28,02,583/-. 12. Reliance placed by Sri ch. Ramesh Babu, Learned counsel for the respondent, on Pradeshiya Industrial & Investment Corpn. Of U.P. (1994) 3 SCC 348 ; and Mediquip Systems (P) Ltd. (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 AIR SCW 5324; to contend that the company petition is liable to be dismissed, is misplaced. In Pradeshiya Industrial & Investment Corpn. Ramesh Babu, Learned counsel for the respondent, on Pradeshiya Industrial & Investment Corpn. Of U.P. (1994) 3 SCC 348 ; and Mediquip Systems (P) Ltd. (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 AIR SCW 5324; to contend that the company petition is liable to be dismissed, is misplaced. In Pradeshiya Industrial & Investment Corpn. Of U.P. (1994) 3 SCC 348 ; the Supreme court, while holding that the defence of the appellant in relation to non-payment was a bona-fide defence; the liability of the appellant was yet to be determined; the first respondent was not a creditor; the appellant was not a debtor as it was a financial institution for an amount which was agreed to be subscribed; the High court had not decided the question whether there was a debt, and the company had either neglected or was unable to pay; there was no definiteness about the claim which was the subject-matter of arbitration, and was pending adjudication; there was a prima facie dispute as to the debt; the defence raised was a substantial one, and not a mere moonshine; the financial position of the appellant was sound; it was the largest financial corporation in the State of Uttar Pradesh; it was a profit-making financial corporation with a huge asset base, and large reserves; it was paying dividend; and there was no justification for admitting the winding-up petition; observed that, for application of section 433(e), there must be a debt, and the company must be unable to pay the same, an order under clause (e) is discretionary; a debt under this, section must be a determined or a definite sum of money payable immediately or at a future date; “inability to pay its dues” should be taken in the commercial sense, in that, it is unable to meet current demands; it is “plainly and commercially insolvent” that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain as to make the court feel satisfied that the existing and probable assests would be insufficient to meet the existing liabilities. 13. In Mediquip Systems (P) LTD., . 13. In Mediquip Systems (P) LTD., . (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 AIR SCW 5324); the Supreme court, while observing that there was no clear cut finding by the learned single judge that a debt was prima facie due and payable by the Company to the petitioner creditor; the order had been passed in the purported exercise for winding up of the company; the company court had no jurisdiction to direct the company to deposit the amount payable to a third party or to a party other than the petitioning creditor; the respondent was not a creditor, and the appellant was not a debtor; the defence raised by the appellant was a substantial one, and not a mere moonshine; the dispute was required to be finally adjudicated upon on merits before the appropriate forum; the financial position of the appellant was sound; an interim relief, which can be granted only in aid of, and as ancillary to the main relief which may be available to the party on final determination of its rights in a suit or proceedings, could not be granted; there was no prima facie dispute as to the debt; and there was no justification for admitting the winding up petition; held that an order, under section 433(e) of the companies Act, was 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; the inability referred to in the expression “unable to pay its due” in section 433(3) of the Companies Act should be taken in the commercial sense; one of the considerations in order to determine whether the company is able to pay its debts or not is whether the company is able to meet its liabilities as and when they accrue; whether it is commercially solvent means that the company should be in a position to meet its liabilities as and when they arise, and that the machinery for winding up could not be allowed to be utilized merely as a means for realizing the debts due from a company. 14. It is evident, therefore, that the dispute raised by the respondent is not bonafide, and is merely a moonshine. 14. It is evident, therefore, that the dispute raised by the respondent is not bonafide, and is merely a moonshine. Bearing in mind that there is no bonafide dispute, regarding the debt due and payable by the respondent to the petitioner, let us now examine the contention urged by Sri Ch.Ramesh Babu, Learned Counsel for the respondent, and that the company petition is liable to be dismissed. RULE 21 OF THE COMPANIES (COURT) RULES, 1959: 15. Rule 21 of the Companies (Court) Rules, 1959 stipulates that every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, if there are more than one, and, in case the petition is presented by a body corporate, by a Director, secretary or other principal officer thereof; such affidavit should be filed along with the petition, and should be in Form No.3. Under the proviso thereto the judge may, for sufficient reason, grant leave to any other person, duly authorized by the petitioner, to make and file the affidavit. 16. A company can sue and be sued in its own name. Rule 6 of the companies (Court) Rules, 1959 provides that, save as provided by the Act or by these Rules, the practice and procedure of the Court and the provisions of the code so far as applicable, shall apply to all proceedings under the Act and these Rules. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any, as a company is juristic entity, some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit, by or against a corporation, the secretary or any Director or other Principal Officer of the corporation, who is able to depose to the facts of the case, might sign and verify on behalf of the company. From a reading of Order 6 Rule 14, together with Order 29 Rule 1 of the Code of Civil Procedure, it would appear that, even in the absence of any formal letter of authority or power of attorney having been executed, a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto, and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is juristic entity it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorized to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In the absence thereof, and in cases where pleadings have been signed by one of its officers, a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record and after taking all the circumstances of the case, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer. (United Bank of India v. Naresh Kumar (1996) 6 SCC 660 ). 17. In view of the requirement of Rule 21 of the Companies (court) Rules, 1959 if the person, who filed the company petition, is neither a director nor the secretary or the principal officer of the petitioner-company, the Registry ought not to number the company petition, and should post the same for orders of the court. (D & H Secheron Electrodes (P) Ltd. V. Voltare Electrodes (P) Ltd. 1997 (89) CC 592 (AP); M/s. Multimetals Ltd. V. M/s. Suryatronics Pvt. Ltd. AIR 1997 AP 13 ). The power to file suits and/or proceedings for the recovery of the amounts due or becoming due cannot be held to embrace the power to institute proceedings for winding up under the Companies Act, 1956. Powers of attorney must be strictly construed, the rationale, behind that principle being that the powers given are not abused by the agents, and the actions are restricted within and only to the extent and the power is indicated or given. (Coromandel International Ltd. V. Chemical Biotech Ltd .(2011) 4 Comp. Law. J 279 (AP). 18. It is no doubt true that when the statute provides for a particular procedure, other methods or modes of performance are impliedly and necessarily forbidden. (Coromandel International Ltd. V. Chemical Biotech Ltd .(2011) 4 Comp. Law. J 279 (AP). 18. It is no doubt true that when the statute provides for a particular procedure, other methods or modes of performance are impliedly and necessarily forbidden. (Krishna Chandra Sahoo v. Bank of India AIR 2009 Orissa 35; State of Bihar v. J. A.C. Saldanna AIR 1980 SC 326 ; Haresh Dayaram Thakur v. State of Maharastra (2000) 6 SCC 179 ; AIR 2000 SC 2281 ; Prabha Shankar Dubey v. State of Madhya Pradesh AIR 2004 SC 486 , and Indian Banks Association v. Devkala Consultancy Service AIR 2004 SC 2615 ); but then procedural defects, which do not go to the root of the matter, should not be permitted to defeat a just cause. There is sufficient power in the courts, under the code of civil procedure, to ensure that injustice is not done to any party who has a just case. As far as possible, a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. (Naresh Kumar (1996) 6 SCC 660 ). Even if there is slight defect or irregularity in the filing of the affidavit, the applicant should be given an opportunity to rectify the same. (Malhotra Steel Syndicate v. Punjab Chemi-Plants Ltd (1993 Supp (3) SCC 565; D & H Secheron Electrodes (P) Ltd. 1997 (89) CC 592 (AP). 19. In case Sri R. Ram Kumar, as the Managing Director of the petitioner company, had verified the affidavit filed in support of the petition, then the requirement of Rule 21 would have been satisfied, and it would not have been necessary for him to seek leave of this court under the proviso to Rule 21 of the companies court Rules, 1959. It is only because Sri R. Seshan, the senior General Manager of the petitioner company, had verified the affidavit filed in support of the company petition, was leave required to be sought in terms of the proviso to Rule 21. 20. It is only because Sri R. Seshan, the senior General Manager of the petitioner company, had verified the affidavit filed in support of the company petition, was leave required to be sought in terms of the proviso to Rule 21. 20. Company Application No. 1667 of 2011 was filed by the petitioner company seeking leave of this court to file a copy of the resolution of the Board of Directors dated 01.02.2011 empowering the Managing Director to sub-delegate the powers, and consequently permit the petitioner-applicant to pursue the company petition through its senior General Manager Sri R. Seshan who had been duly empowered under the power of attorney dated 18.02.2011. The Board Resolution dated 01.02.2011 accords approval of Sri. R. Ram Kumar, Managing Director of the petitioner-company, to appoint, nominate, depute any person to act as the special attorney for and on behalf of the company to do all such acts and deeds and things that are mentioned in the resolution; and to sign, execute, attest, endorse any documents incidental to the scope of all such acts and deeds mentioned in the resolution. Among the acts and deeds, mentioned in the Resolution, include the act of commencing and prosecuting any action, suits, company petitions or any other proceedings at law against any corporate entity; the power to act either personally or through agents in all courts; and to give vakalats, appoint Advocates, sign verify and execute plaints, company petitions, counters/rejoinders, written statement, appeals etc., that may be necessary to be signed, verified and executed by the Board in their name, and on their behalf, for any purpose. It is thus evident that Sri. R. Ram Kumar, Managing Director of the petitioner-company, was not only authorized by the Board to commence and prosecute company petitions, but also to appear and act through agents in all courts. It was wholly unnecessary for Sri R.Ram Kumar to act personally in the company petition as he was empowered by the Board to act through an agent. R. Ram Kumar, Managing Director of the petitioner-company, was not only authorized by the Board to commence and prosecute company petitions, but also to appear and act through agents in all courts. It was wholly unnecessary for Sri R.Ram Kumar to act personally in the company petition as he was empowered by the Board to act through an agent. Sri R. Ram Kumar had acted in compliance with the mandate of the Board in giving a power of attorney to Sri R. Seshan authorizing the latter to do in connection with the legal proceedings to be filed by the petitioner, including winding up petitions against the respondent, the following acts or things for, on its behalf, and in the name of the company (1) to sign, verify the appropriate application/ petition, sign and give vakalatnama, give evidence on oath or otherwise sign on any application or affidavit, and execute all documents required by and on behalf of the company in connection with the proceedings before the appropriate courts, and do all acts and things in incidental to the aforesaid as required under the Rules of law, and as required under the Rules of the said Courts. 21. It is evident, therefore, that Sri R. Ram Kumar, Managing Director of the petitioner company, was authorized to appoint an agent on behalf of the petitioner-company, and to authorize him to sign affidavits on behalf of the petitioner-company. An application seeking leave under Rule 21 was filed by the petitioner, in C.A. No. 1667 of 2011, and this court, after hearing counsel for the parties, noted that the Learned counsel for the respondent had no objection to the extent of according permission to the petitioner to file a copy of the resolution dated 01.02.2011; however, with regards to the authorization given to Sri. R. Seshan, the respondent reserved its right to question the same in the company petition. This court, while reserving the said liberty to the respondent, ordered the application. The contention urged by Sri Ch. Ramesh Babu, Learned Counsel for the respondent-Company, that Sri R. Ram Kumar was not authorized to give a power of attorney to Sri R. Seshan does not merit acceptance as the Board not only authorized Sri. R. Ram Kumar to act on its behalf, but also authorized him to appoint agents to do so. The contention urged by Sri Ch. Ramesh Babu, Learned Counsel for the respondent-Company, that Sri R. Ram Kumar was not authorized to give a power of attorney to Sri R. Seshan does not merit acceptance as the Board not only authorized Sri. R. Ram Kumar to act on its behalf, but also authorized him to appoint agents to do so. By virtue of the powers conferred on him by the Board, Sri R. Ram Kumar has appointed Sri R. Seshan, the senior general manager of the petitioner company, as an agent of the petitioner-company to sign the affidavit filed in support of the company petition. The requirement of the proviso to Rule 21, of the companies court rules, 1959, has also been satisfied by the petitioner which filed C.A. No. 1667 of 2011 before this court seeking its leave. I see no reason, therefore, to reject the company petition on the ground of non-compliance with rule 21 of the companies court rules, 1959. COMPLIANCE WITH RULE 95 OF THE COMPANIES (COURT) RULES, 1959: 22. With regards the objection that Rule 95 of the companies court rules, 1959 has not been satisfied, it is necessary to note that Rule 95 requires a petition filed by a creditor, for winding up of a company, to be in Form 46 with such variations as the circumstances may require, and to be presented in duplicate. Form-46 requires the company petition to state that the respondent company was indebted to the petitioner in the sum of rupees, and to state the consideration for the debt with particulars showing that the debt claimed is due. It also requires the petitioner to state that they had applied to the company, for payment of the debt by notice of demand signed, dated and served on the company at its registered office by registered post, and that the company had failed, and had neglected, to pay the same or any part thereof. The petitioner is also required to state that the respondent company is insolvent and is unable to pay its debts. 23. The petitioner is also required to state that the respondent company is insolvent and is unable to pay its debts. 23. In Kitti Steels Ltd. Hyderabad 2010 (4) ALD 116 this court held that when a petition is presented by a creditor, under section 433 (e) an d/ or 433(e) read with 433 (f) of the Act, compliance with Rule 95 is essential to succeed in a winding up petition; the petition must contain essential pleadings that the respondent company has failed and neglected to pay the petitioner’s debt, even after receipt of the notice of the demand in writing; and the company is insolvent and unable to pay its debts. 24. A perusal of the company petition would show that the petitioner has asserted that the respondent company had failed and had neglected to pay the outstanding amount due of a sum of Rs. 30,62,583/-along with interest at 18% per annum, for the services rendered by it to the company as on the date of filing of the petition; thus the neglect on the part of the company to pay up the said debt amount, being the liability for the services utilized, was prima facie evidence of their inability to pay up an admitted debt; the petitioner reliably learnt that the respondent company was facing financial problems, and had accumulated losses; it was also heavily indebted to various other creditors; the respondent company was not in a position to meet its day to day statutory and other obligations as and when they fell due; and , therefore, it was commercially insolvent, and was clearly not in a position to honour their current liabilities as a running company. It is evident, therefore, that the requirement of Rule 95 of the Company Court Rules, and Form 46 thereof, are satisfied. ALTERNATIVE REMEDY OF FILING A CIVIL SUIT: DOES IT BAR EXERCISE OF DISCRETION UNDER SECTION 433 (E) TO ENTERTAIN A PETITION FOR WINDDING UP ON THE GROUND THA THE COMPANY IS UNABLE TO PAY ITS DEBTS? 25. In examining this question it is necessary, at the outset, to note the distinction between a civil suit for recovery of money, and a petition for winding up of a company on the ground of its inability to pay its debts. 25. In examining this question it is necessary, at the outset, to note the distinction between a civil suit for recovery of money, and a petition for winding up of a company on the ground of its inability to pay its debts. Proceedings for winding up, under section 433 of the companies Act, cannot be equated to suits or for that matter suits for recovery of money. In the winding up proceedings, the lis is not merely between the petitioning party and the company sought to be wound up. Once the petition is admitted the creditors, contributories, shareholders etc., seek redress in the proceedings, and even oppose the winding up. The company is directed to be wound up depending upon a case being made out, whereupon the assets are the taken over and distributed in accordance with the provisions of the companies act and the rules. A suit for recovery of money is essentially a suit between the parties where no third party can seek any indulgence or impleadment. Proceedings for winding up under the companies act are entirely different, a special remedy provided for and the idea is not to restrict the proceedings to the parties alone and its range is widened and all steps taken in winding up proceedings are in public interest. Sometimes the relief for winding up is denied when it is against public interest. (Coromandel International Ltd. (2011 4 comp.law J 279 (AP). A petition presented under section 433 (e) of the companies act for winding up of a company is not equivalent to an application seeking recovery of a debt due to the petitioning creditor. Section 433 of the companies act is not intended to supplant the jurisdiction of a civil court to adjudicate a money suit. Section 433 (e) vests in the company court the jurisdiction to wind up a company, inter alia, under clause (e), if the company is unable to pay its debts. Once the statutory fiction under section 434 comes into play, it is open to the company court to entertain a petition under section 433 (e) of the companies act. 1956 (Viral Filaments ltd., v. Indusind Bank Limited 2003 (113) CC 85 (Bombay High court). Once the statutory fiction under section 434 comes into play, it is open to the company court to entertain a petition under section 433 (e) of the companies act. 1956 (Viral Filaments ltd., v. Indusind Bank Limited 2003 (113) CC 85 (Bombay High court). If there is no bonafide dispute with regards the sum payable toward the principal, it is open to the creditor to resort to both the remedies of filing a civil suit as well as filing a petition for winding up of the company. (Mediquip systems (P) Ltd (2005) 7 SCC 42 ; ( AIR 2005 SC 4175 ; 2005 AIR SCW 5324; Tube Investments of India Ltd. (1990) 3 Comp. LJ 322). 26. Bearing this distinction in mind, let us now examine whether the remedy of a civil suit would bar exercise of discretion under section 433(e) of the company act. Section 433 of the companies 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 be read 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. (Raghunath Prasad Jhunjhunwalla (1976)46 CC 91 (SC). 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 ). 27. (K.Mohan Babu v. Heritage Foods India Ltd. Hyderabad (2001) 5 ALD 800 ). 27. 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 433(f) of the Act. It is only if the other available remedy is not efficacious can be 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. 28. In M/s. Kitti Steels Limited ( 2010 (4) ALD 116 ), 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 ( 2010 (4) ALD 116 ), cannot either be read, or to be understood, as extending the requirement of compliance with section 443 (2), (which is applicable to a petition for winding up under 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. 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 (e) of the companies Act would with 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 surplussage, if they can have proper application in circumstances conceivable within the contemplation of the statute. (Gurudevdatta 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 depression 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 ). (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 provision redundant must be avoided. (Banarasi Debi v. ITO (1964) 7 SCR 539 ; Attorney General v. Carltoon 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). 29. 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 statues, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statues. (Bharat Petroleum Corporation 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. Sri devi W/o P. Murali Krishna (2008) LAP 340.; As the petitioner does not press for the relief under section 433 (f), and as their claim is limited to section 433 (e), I see no reason to relegate the petitioner to the remedy of a civil suit or to dismiss the company petition on this ground. COMMERCIAL INSOLVENCY: 30. On the question whether commercial solvency would justify refusal to exercise discretion under section 433 (e) of the companies act this court, in Venkateswara Flexo Pack (P) Ltd. V. Sampre Nutrition’s Ltd. (2011) 4 Comp. COMMERCIAL INSOLVENCY: 30. On the question whether commercial solvency would justify refusal to exercise discretion under section 433 (e) of the companies act this court, in Venkateswara Flexo Pack (P) Ltd. V. Sampre Nutrition’s Ltd. (2011) 4 Comp. Law J. 990 (AP), held that, in order to raise a presumption of a company’s inability to pay its debts, it is not enough merely to show that the company has omitted to pay the debt despite service of the statutory notice; it must be further shown that the company omitted to pay without reasonable excuse, and conditions of insolvency in the commercial sense exist; the petition must disclose the assets of the company, and whether they are insufficient to meet the liabilities including contingent and prospective liabilities, and it must further disclose the position of the fixed assets as well as valuation of plant and machinery of the company, the question is not whether at a given time the company can pay all its debts whether presently due or only in future and still continue to function , but the question is whether it is able to meet the current demands; it would be insolvent if it cannot do that even if it has assets not presently available, but more than ample to pay its debts; when the court is called upon to wind up a company, under clause (e) of section 433, what is to be considered is not whether the company, if it converted all its assets into cash, would be able to discharge its debts but whether, in a commercial sense, the company is insolvent and whether it is unable to meet its current demands although the assets when realized may exceed its liabilities; the petitioner has to place, prima facie, evidence that the company is commercially insolvent, its existing assets and probable assets are insufficient to meet the existing liabilities, and the company is heavily indebted to various creditors; if, from the material on record, it cannot be made out that the company is commercially insolvent, then the petition should be dismissed even before issuing notice regarding admission; there is a responsibility and duty on the courts to find out whether the concerned company has come commercially insolvent for the purposes of winding up; at the initial stage the court would be circumspect and judicious in exercising discretion; and it should take all relevant facts and circumstances into consideration before even issuing process regarding admission. 31. In Rishi Enterprises, In re (1992) 73 CC 271 the Gujarat High Court held that section 433 (e) itself confers judicial discretion upon the courts; a company which is a running company employing several employees who are paid their wages regularly, and which is having a business of crores of rupees every year, should not be brought to a grinding halt by admitting a winding up petition merely because it is in some financial difficulty at the moment; on the contrary; even in those cases where the company is closed, it is the duty of the court to welcome revival rather than affirm the death of the company; the creditors cannot insist on the winding up of the company by the court as a matter of right if the position of the company is such that it would be unable to pay its debts to them even if the company can be resurrected; and the petitioning creditor cannot be permitted to insist on his pound of flesh, which may be a death blow to the company, only on the ground that, for a temporary period, a running company is to in a position to pay the debt. 32. In Kanchanaganga Chemical Industries (1998) 91 CC 646 (Karnataka), the Karnataka High Court held that certain requirements should be established, prima facie, before getting a petition under section 433 (e) admitted and advertised; if, from the material on record, it cannot be made out that the company is commercially insolvent, then that petition may be dismissed even before issuing notice regarding admission. The judicial process should not be an instrument of oppression or needless harassment. There lies a responsibility and duty on the courts to find out whether the concerned company has become commercially insolvent for the purposes of winding up; at the initial stage the court would be circumspect and judicious in exercising discretion, and should take all relevant facts and circumstances into consideration before even issuing process regarding admission lest it would be an instrument in the hands of creditors as a vendetta to harass the debtor company needlessly; and vindication of the majesty of justice, and enforcement of law, are the prime objects of justice and it should not be abused since the company petition for winding-up is an interest litigation. 33. Reliance placed on the judgment of this court in Venkateswara Flexo-pack (P) Ltd. (2011) 4 Comp. 33. Reliance placed on the judgment of this court in Venkateswara Flexo-pack (P) Ltd. (2011) 4 Comp. Law J. 90 (AP); on the judgment of the Gujarat High Court in Rishi Enterprises (1992) 73 CC 271; and on the judgment of the Karnataka High Court in Kanchanaganga Chemical Industries (1998) 91 CC 646 (Karnataka); is misplaced as the Supreme court, in IBA Health (India) Private Limited (2010) 10 SCC 553, has held that an examination of the company’s insolvency may be a useful aid in deciding whether the refusal to pay is a result of the bonafide dispute as to liability or whether it reflects an inability to pay; in such a situation, solvency is relevant not as a separate ground; if there is no dispute as to the company’s liability, it is difficult to hold that it is able to pay the debts; solvency of the company might not constitute a stand alone ground for setting aside a notice under section 434 (1) (a), meaning thereby, if a debt is undisputedly owing, then it has to be paid, if the company refuses to pay without good reason, and on no genuine and substantial grounds, it should not be able to avoid the statutory demand by proving, at the statutory demand stage, that it is solvent; 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; 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 its 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. 34. 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. 34. 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 is 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. No provision of a statute can be read as being redundant or be treated as inapposite surplussage. 35. While the legal 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. The respondent’s self serving plea, in its counter affidavit, that it is a profit making company and is paying the enforceable debt due to all the statutory authorities, secured and unsecured creditors etc., in not borne out from any of the documents placed before this court. ARE CLAUSES (A) TO (C) OF SECTION 434 (1) OF THE COMPANIES ACT CUMULATIVE OR IN THE ALTERNATIVE? 36. The contention of Sri. Ch. Ramesh Babu, Learned counsel for the respondent, that clauses (a) to (c) of section 434 (1) must all be satisfied, (and not merely clause (a) of section 434 (1)), in order to attract the legal fiction of the company being unable to pay its debts, is not tenable. 36. The contention of Sri. Ch. Ramesh Babu, Learned counsel for the respondent, that clauses (a) to (c) of section 434 (1) must all be satisfied, (and not merely clause (a) of section 434 (1)), in order to attract the legal fiction of the company being unable to pay its debts, is not tenable. Under section 434 (1) of the Act a company shall be deemed to be unable to pay its debts (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due, and the company has for three weeks thereafter neglected to pay the sum or; to secure or compound for it to the reasonable satisfaction of the creditor; (b) if execution or other process issued on a decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or (c) if it is proved to the satisfaction of the court that the company is unable to pay its debts and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company. 37. Clauses (a) to (c) to section 434 (1) of the companies act deal with three distinct and different situations. Under clause (a) failure on the part a debtor to pay the debt due to the creditor, within three weeks from the date on which a notice of demand served on them at the registered office, would require the company to be deemed to be unable to pay its debts. Likewise under clause (b) if, on a decree being obtained, and in execution proceedings the decretal amount is not satisfied in whole or in part, then the judgment debtor company is required to be deemed to be unable to pay its debts. The third situation is under Clause (c) where the company is deemed to be unable to pay its debt if it is proved to the satisfaction of the court that the company is unable to pay its debts. The third situation is under Clause (c) where the company is deemed to be unable to pay its debt if it is proved to the satisfaction of the court that the company is unable to pay its debts. The court is required, under clause (c) of section 434 (1), to take into account the contingent and prospective liabilities of a company in determining whether the company is unable to pay its debts. Clauses (a), (b) and (c) of section 434 (1) of the companies act deal with three different and distinct situations and are, evidently, in the alternative. Reading the requirement of clauses (a) to (c) of section 434 (1) as cumulative, more so when the word “or” is used therein, would result in a situation where the legal fiction under section 434 (1) of companies act would not be attracted to any case at all. This contention urged on behalf of the respondent, therefore, necessitates rejection. 38. None of the contentions urged by Sri. Ch. Ramesh Babu, Learned Counsel for the respondent, merit acceptance. The company petition is required to be and is accordingly admitted. 39. As required under Rule 24 read with Rule 99 of the companies’ court rules, 1959, admission of the company petition is required to be advertised in two daily new papers. The petition is required to be advertised in Business Standard (English Daily) and Andhra Prabha (Telugu Daily), Hyderabad Editions on or before 15.06.2012. 40. Post on 19.06.2012 for “proof of publication”.