JUDGMENT : R.M. Chhaya, J. Heard Mr.S.M.Gohil, learned counsel appearing with Mr.Hardik Soni, learned counsel for the petitioner and Mr.S.P.Majmudar, learned counsel for the respondent-Company. 2. The petitioner has filed this petition under Sections 433 and 434 of the Companies Act, 1956 for winding up of the respondent Company viz. M/s. K.K.Interlinings Manufacturing Private Limited, having its registered office at 11, Vikram Society, Opp.Yash Complex, Gotri Road, Vadodara. 3. The petitioner has claimed that an amount of Rs. 17,89,189/- along with interest is due and payable by the respondent-Company. It is the case of the petitioner that the respondent-Company showed his desire to purchase goods from the petitioner in huge quantity with promise and assurance that whatever purchase is made by the respondent-Company, shall be paid before the due date, failing which the respondent-Company also agreed to pay the interest at the rate of 24% per annum. It is the case of the petitioner that the respondent-Company purchased gray fabrics under different bills as per its requirement from the petitioner. It is the case of the petitioner that the original Challan, lorry receipts and bills were sent to the respondent-Company along with goods, which were found in good condition by the respondent-Company. It is further the case of the petitioner as described in paragraph No.5 of the petition that out of said transactions, respondent-Company has not paid an amount to the tune of Rs. 17,89,189/- towards 17 bills of different numbers and different dates. It is further case of the petitioner that the respondent-Company has acknowledged the same and even though repeated demands were made, the petitioner has not received any amount against the aforesaid bills. 4. It appears from the record of the petition that on 07.04.2010, the petitioner resorted to arbitration proceedings against the respondent- Company before Mumbai Textile Merchants Mahajan being Arbitration Case No.2 of 2010/2011. The petitioner taking basis of arbitration proceedings, which were ultimately dismissed vide notice dated 13.10.2010 issued notice under Sections 433 and 434 of the Act on 19.03.2012, which came to be replied by the respondent- Company vide its reply dated 06.04.2012. The petitioner has specifically stated that as per the directions given by the Arbitrators, present petition is filed. 5. The petitioner has contended that the respondent-Company has taken false defence even before the arbitration proceedings and has never paid dues, which are due and payable. The petitioner has specifically stated that as per the directions given by the Arbitrators, present petition is filed. 5. The petitioner has contended that the respondent-Company has taken false defence even before the arbitration proceedings and has never paid dues, which are due and payable. It may be noted that in paragraph No.15 of the petition, the petitioner has taken specific ground on the basis of which, the petitioner has prayed that the respondent-Company be wound up. 6. In response to the notice issued by this Court, the respondent-Company appeared and filed its reply and has specifically denied the fact that amount as claimed for in the petition is due and payable. The respondent-Company has contended that the petitioner has made false statement that the petitioner has supplied goods to the respondent-Company, in fact no goods were ever supplied to the respondent-Company. It is also contended that the bills are wrongly raised and the same are frivolous. It is specifically contended by the respondent-Company that not a single good has ever been supplied by the petitioner and even statement that the same were received in good condition is denied and disputed by the respondent-Company. The respondent-Company has further contended that even in the order of arbitration proceedings, which is made on the basis of filing of present petition, it is nowhere stated that the petitioner may file present petition before this Court. The respondent-Company has contended that dues are disputed and same are unascertainable and therefore, this petition is not maintainable. The respondent-Company has contended that transactions between the petitioner and the respondent-Company were not business transaction but were financing transaction in form of bill purchasing and therefore, it is contended that the present petition is not maintainable. The respondent- Company has contended that the respondent-Company is a going concern and there is no ground for winding up of the respondent- Company under Sections 433 and 434 of the Companies Act, 1956. 7. The respondent-Company specifically stated that the petitioner is brother-in-law of the Managing Director of respondent-Company and by resorting to this proceeding, the petitioner has actually tried to ventilate his social grievances. The respondent-Company further contended that the reasons given by the Arbitrators are proper and has contended that the Arbitrators have given various findings on merits, which clearly go against the petitioner. The respondent-Company further contended that the reasons given by the Arbitrators are proper and has contended that the Arbitrators have given various findings on merits, which clearly go against the petitioner. The respondent-Company specifically has contended that no unpaid dues of the petitioner from the respondent-Company are due and payable as alleged and has disputed the claim, which is based on books of accounts of the petitioner. 8. It may be noted that the petitioner has filed a rejoinder denying the contentions raised by the respondent-Company in its reply. The petitioner has further filed Additional Affidavit, whereby the petitioner has produced extracts of Balancesheet of financial year of 2009-2010, 2010-2011 and 2011-2012 of the petitioner. The respondent- Company has filed a reply to the Additional Affidavit filed by the petitioner and has contended that the petitioner has not produced a single document or evidence to show as to how an amount of Rs. 17,89,189/- is due and payable from the respondent-Company. The respondent-Company has further contended that the petitioner himself is not sure about its facts and there are no crystallized dues owed to the petitioner. After the said reply, the petitioner has again filed Additional Affidavit and has contended that the petitioner has actually sold goods, which are enumerated in paragraph No.2 of Additional Affidavit dated 13.02.2013 and has also annexed some bills along with the lorry receipts. As the petitioner was permitted to file Additional Affidavit, the respondent-Company has also filed a reply and has denied the contentions raised by the petitioner in the Additional Affidavit. The respondent-Company has further contended that lorry receipts, which are annexed are not of the respondent-Company, as the respondent-Company has no registered office or factory at the Ahmedabad and therefore, there is no question of transporting goods from I chalkaranji to Ahmedabad to be delivered to the respondent-Company at Ahmedabad. The respondent-Company has specifically disputed the very claim raised by the petitioner. 9. Mr.S.M.Gohil, learned counsel for the petitioner has raised grounds, which are raised in the petition and has submitted that an amount of Rs. 17,89,189/- is due and payable. The respondent-Company has specifically disputed the very claim raised by the petitioner. 9. Mr.S.M.Gohil, learned counsel for the petitioner has raised grounds, which are raised in the petition and has submitted that an amount of Rs. 17,89,189/- is due and payable. He has relied upon the lorry receipts as well as bills, which are annexed by way of Additional Affidavit and has submitted that the goods have been supplied to the respondent- Company and therefore, the petition is maintainable and as the respondent-Company is neglected to pay the said amount, which is due and payable and hence, the petition deserves to be allowed. 10. Per contra, Mr.S.P.Majmudar, learned counsel for the respondent-Company has contended that the petitioner has raised false claim against the respondent-Company by filing present petition. He further contended that even if, the debt of bills are taken into consideration, which are mentioned in paragraph No.5 of the petition as well as in the bills, which are annexed with the Additional Affidavit during the course of hearing before this Court, the debt is time bared debt. He further contended that the petitioner has misread the order passed by the Arbitrators and have wrongly based the present petition, as if the Arbitrators directed the petitioner to prefer the present petition of winding up before this Court. He further contended that the respondent-Company has no registered office or factory at Ahmedabad and has submitted that no goods were ordered by the respondent-Company from the petitioner, and therefore, there is no question of any goods having been received in good condition. He further contended that transaction was in form of bill purchasing and that too of the year 2006, whereas the petitioner has resorted to arbitration proceedings in the year 2010 i.e. after 4 years and thereafter, preferred this petition in the year 2012 i.e. 2 years after the arbitration proceedings came to be terminated. He therefore, contended that the debt is not an admitted debt and therefore, the petition is liable to be dismissed. He further contended that none of the grounds raised in the petition justifies that any amount is due and payable much less any admitted debt. He alleged that because of severe personal relation with the Managing Director of the respondent-Company, the petitioner has filed this frivolous petition, which deserves to be dismissed with costs. 11. He further contended that none of the grounds raised in the petition justifies that any amount is due and payable much less any admitted debt. He alleged that because of severe personal relation with the Managing Director of the respondent-Company, the petitioner has filed this frivolous petition, which deserves to be dismissed with costs. 11. Considering the rival submissions made by both the learned counsel for the respective parties, at the outset, it may be noted that in paragraph No.5 of the petition, the petitioner has based his claim on basis of alleged unpaid 17 bills, which are of the month of January 2006 to March 2006 and 2 bills of November-December 2009. It is also noteworthy that the petitioner resorted to arbitration proceedings before Mumbai Textile Merchants Mahajan in the year 2010 and even the said proceedings were terminated vide order dated 13.10.2010. It may be noted that while terminating arbitration proceedings, Arbitrators have recorded the findings on merits and in paragraph No.13, it is specifically observed that the petitioner depends more on the ledger accounts of the respondent-Company rather than producing authenticated evidence of business transactions. It appears from the order passed by the Arbitrators, terminating the proceedings that the petitioner has not produced any document to show that there was genuine business transaction between two parties. On the contrary, it is found that the Arbitrators have observed that except 2 bills, all other bills are more than three years old and therefore, the Arbitrators have not entertained the plea raised by the petitioner. It may be noted that in the last paragraph of the order, the Arbitrators have stated that no award is passed and have further observed that the parties are hereby directed to initiate legal proceedings before the concerned Court of law, which is made on the basis of the present petition. It may further be noted that the grounds, which are enumerated in paragraph No.15 of the petition, the petitioner has not contended that the respondent-Company has shown its inability to pay any dues but on the contrary, in ground-C thereof, the petitioner has raised a ground that as per the judgment of Apex Court, even the profit making company can also be wound up to the extent of paying dues to his creditor. 12. 12. Apart from the fact that the respondent- Company has denied the contentions raised in the petition and has contended that no goods are received or purchased by the respondent-Company. It may further be noted that during the course of hearing, this Court also gave opportunity to the petitioner to produce any document to show that the goods are delivered to the respondent-Company just to examine the genuineness of the contention raised by the petitioner in the present petition. 13. As observed above, the petitioner has filed Additional Affidavit dated 13.02.2013 and has produced certain bills along with the said affidavit and on perusing the documents, which are produced on later stage, the same does not in any manner even prima facie establish the claim, as raised by the petitioner in the petition. Lorry receipts, which are produced are of different transporters, wherein it is mentioned that the goods were transported to Ichalkaranji to Ahmedabad. The bills of the respondent- Company, which are produced are not of the petitioner but is of another concerned company named Nec Tex-Mumbai and except entry of the ledger account of the petitioner, nothing is produced by the petitioner. The petitioner has not been able to produce any document on record, whereby it can be said that the goods were sold by the petitioner to respondent-Company and that goods were actually delivered to the respondent- Company and that bills have remained unpaid and such a debt is admitted by the respondent- Company. 14. Mr.S.M.Gohil, learned counsel for the petitioner relied upon the judgment of the Karnataka High Court in the case of State Bank of India v. Hegde and Golay Limited reported in 1983 Law Suit (Kar) 50 and has contended that even in the circumstances which arises in the present petition, the respondent-Company deserves to be wound up, even in the public interest. 15. At this juncture, it would be advantageous to refer to judgment of the Division Bench of this Court in the case of Tata Iron & Steel Company Ltd. v. Micro Forge (India), reported in 2000 (2) GLR 1594 , wherein the Division Bench of this Court has laid down the principles and guidelines under which the discretion requires to be exercised under Sections 433 and 434 of the Companies Act, 1956 and has observed thus:- "17. Certain important chronicles and contours to be kept in the mental radar, before reaching to the conclusion in a winding up petition, can be articulated, as under: (1) The remedy under section 433 in general and under clause (e) in particular is not a matter of right, as such, and it is the discretion of the Company Court. It does not confer any right on any persons to seek order that the company should be wound up. It is a provision empowering the court by a statutory provision to pass order of winding up in an appropriate case. (2) Merely because any one of the circumstances enumerated in section 433 of the Companies Act, exists, the Court is not bound to order winding up of the company. Nobody can aspire to wind up the company as a matter of course. The Court has wide power and discretion. In this connection, inability to pay debts, is required to be judged from various set of facts and circumstances. It may also be stated that inability to pay debts in all cases, ipso facto, could not be construed as an appropriate case for winding up. (3) The debt is a money which is payable or will be payable in future by reason of person's obligation. The expression 'debt' would refer the liability to pay and it rests on certain contingencies, conditions and casualties. Even if the debt is proved and even if the inability to pay the debt is also shown, it is not a launching pad, in all cases, for successful winding up order. Inability may arise for variety of reasons and the Court is obliged to consider whether inability is the outcome of any deliberate or designed action or mere temporary shock and effect of economy and market. In a given case, it may happen that a party may become unable to pay its debts for a while, but that by itself is not a criterion for exercise the power to wind up, ipso facto. (4) It is necessary for the Company Court to consider the financial status, strength and substratum of the Company, in overall context. It is possible, at times, there may be a cash crunch. (4) It is necessary for the Company Court to consider the financial status, strength and substratum of the Company, in overall context. It is possible, at times, there may be a cash crunch. It may be also, possible, at times, the temporary cash crisis despite high sale and heavy turnover and, therefore, in such a situation, mere disability or only on the ground of inability to pay would not constitute a ground empowering the Court to wind up the Company. (5) If the Company is an ongoing concern having regular business and employment of employees, the Court cannot remain oblivious to this aspect. The effect of winding up would be of putting an end of the business or an industry or an entrepreneurship and, in turn, resulting into loss of employment to the several employees and loss of production and effect on the larger interest of the society. (6) Even dividend declared by the company regularly and having profit in the light of the profit and loss account, though temporarily, there may be inability to pay the debt or in case of any eventuality, the company is unable to make the payment of dues and that by itself could not be construed as a ground to winding it up. (7) Winding up of a company, as such, is nothing but a commercial death or insolvency and, therefore, the Company Court is obliged to take into consideration not only the temporary inability, or disability to make the payment of debts, but the entire status and position of the company in the market. (8) When grounds on which the winding up order can be denied, upon an evaluation of the facts of the case, after admission, exists from the record already placed before the Court, it would be a sound exercise of discretion to reject the petition instead of admitting it. This view is very much celebrated. (9) Inability to pay debts in terms of section 433(e) read with section 434(1)(a), demand of the debt would raise a presumption as to inability to pay its debts. But such a presumption is rebuttable. Such a presumption may be rebutted on existing material and what evidence is sufficient depends on the facts and circumstances of the case. (9) Inability to pay debts in terms of section 433(e) read with section 434(1)(a), demand of the debt would raise a presumption as to inability to pay its debts. But such a presumption is rebuttable. Such a presumption may be rebutted on existing material and what evidence is sufficient depends on the facts and circumstances of the case. (10) If the Company has shown considerable growth in a reasonable span and is a growth oriented enterprise, even in case of temporary inability would not be sufficient to drive it to wind up. (11) Though, ordinarily, an unpaid creditor may aspire for an order of winding up, then 'ex debito justitiae' rule is not of inflexible mandate, but is, as such a matter of discretion of the Court. (12) Section 433 is also indicative of the fact that even if one or more grounds mentioned in section 433 exist, it is not obligatory for the Court to make an order of winding up. The court has discretionary power. The Court must in each case exercise its discretion in deciding whether in the circumstances of the case, it would be in the interest of justice to wind up the company. It is a well known rule of prudence that even in case where indebtedness to the petitioning person is undisputed, the Court does not pass order for winding up where it is satisfied that it would not be in the larger interest of justice to wind up the Company. (13) It is, also, well settled that a winding up order shall not be made on a creditor's petition, if it would not benefit him or the company's creditors in general. (14) The Court is also obliged to consider that it would be in the interest of justice to give the Company some time to come out of the momentary financial crisis or any other temporary difficulty as winding up is a measure of last resort. (14) The Court is also obliged to consider that it would be in the interest of justice to give the Company some time to come out of the momentary financial crisis or any other temporary difficulty as winding up is a measure of last resort. (15) Winding up course cannot be adopted as a recourse to recovery of the debt (16) The Court must bear in mind one more celebrated principle and consider whether the Company has reached a stage where it is obviously and plainly and commercially insolvent, that is to say, that its assets are such and its existing liabilities are such as to make the Court feel clearly satisfied that currents assets would be insufficient to meet the current liabilities, along with other principles. (17) It is also necessary to consider whether the respondent Company has become defunct or has closed its business for quite some time, whether it is commercially insolvent. For the purpose of finding commercial insolvency, a mere look into the financial data is relevant to examine about its soundness. In all matters relating to winding up, the Court may have regard to the wishes of the creditors and contributories and may, if necessary, ascertain their wishes appropriately. If the Company is solvent, the wishes of the contributories would carry more weight as they are persons, mainly, interested in the assets. (18) The element of public policy in regard to commercial morality has, likewise, to be taken into account before determining the winding up issue. The Court has also to consider the purpose and policy behind section 443 and 557 of the Companies Act. (19) Winding up is the last thing the Court would do and not the first thing to do having regard to its impact and consequences. Winding up of a company would ensue (a) closing down of a company which is engaged in production or manufacture or which provides some services; (b) it would throw out of employment numerous persons and result in gross hardship to the members of families of the employees; (c) loss of revenue to the State by way of collection of taxes which other wise should have been collected, on account of customs, excise duties, sale tax, income tax etc. (d) scarcity of goods and diminishing of employment opportunities. (d) scarcity of goods and diminishing of employment opportunities. (20) Winding up petition has to be submitted in prescribed form highlighting all the facts and emphasising the inability of the Company to pay its debts. The form prescribed under the Company Court Rules, clearly, indicate that the petitioner should provide all necessary material particulars. The petitioner is obliged to show that the financial status or the monetary substratum or the commercial viability of the Company has gone so low and down that winding up is obviously, and evidently, unavoidable. (21) It is a settled proposition of law that winding up petition is not a legitimate means of seeking to enforce the payment of debt which is disputed by the company, bonafide. Winding up petition ought not to be aimed at pressurising the company to pay the money. Such an attempt would be nothing but would tantamount to blackmailing or stigmatizing the concerned company by abusing the process of the Court. (22) Winding up petition is not an appropriate mode enforcing bonafide disputed debts as it is nothing but misuse and abuse of the process of the Court. (23) Winding up petition is not an alternative form for resolving the debt dispute. In certain cases disputes are such that they are fit for resolving through civil court rather than through company court. (24) What is bonafide and what is not is a question of fact. The expression 'bonafide' would mean genuine, in good faith and when dispute is based on substantial grounds or when defence is probable and with some substance, it is a bonafide dispute. It must be strictly noted that winding up petition is not an alternate to civil suit." 16. Similarly, a view has been expressed by the Apex Court in the case of Pradeshiya Industrial & Investment Corporation of U.P. v. North India Petrochemicals Ltd., reported in (1994) 3 SCC 348 , wherein, the Hon'ble Apex Court has held that where there exists bonafide dispute and the dues are not admitted, the winding up petition is required to be dismissed. 17. Considering the aforesaid principles, in opinion of this Court, none of the exigencies which are laid down exist in the present petition. 17. Considering the aforesaid principles, in opinion of this Court, none of the exigencies which are laid down exist in the present petition. Apart from the fact that out of 15 bills are of the year 2006 and 2 bills are of the year 2009, it is noteworthy that the petitioner resorted to arbitration proceedings in the year 2010 and after termination of the same, issued statutory notice after about 17 months, thereafter, filed the present petition in the year 2012. The petitioner has also not been able to even produce any document, which would even prima facie establish that the transactions as described in the petition were genuine business transactions between the petitioner and respondent-Company and that legitimate claim is raised by the petitioner in the present petition. 18. In view of the fact that the claim raised by the petitioner is disputed and on account of failure on the part of the petitioner to produce any document of delivery of the goods to the respondent-Company, the petition does not deserve any consideration. 19. For the foregoing reasons, this petition fails and is accordingly dismissed. Parties to bear their own costs.