Judgment :- Ashim Kumar Banerjee, J. PREFACE: The interpretation of law is not mathematics that would give a definite result and the only result. However, concept is changing in mathematics as well. W hen a problem is required to be resolved through mathematics it would have more than one solution. We are not mathematician nor having the expertise. Hence, we do not wish to venture any further on the issue. In fact, that may not be relevant herein. Our endeavour is to draw a distinction between the interpretation of law and resolution of a mathematical problem. A literal interpretation would definitely suggest a strict meaning following the grammar and literal meaning of each word. Katju, J. speaking for the Apex Court would say ([AIR 2011 Supreme Court 1925 [Premananda and Ors Vs. Mohan Koikal and Ors.]), “the literal rule of interpretation simply means that we mean what we say and we say what we mean”. His Lordship further observed, “the literal rule of interpretation really means that there should be no interpretation. In other words, Court should read the statute as it is without distorting or twisting its language”. His Lordship eloquently explained what literal interpretation would mean. The golden rule of interpretation would however suggest, the law should be given a correct meaning keeping in view the true spirit and the mindset that the legislature had while enacting the law. The law, in our view, should be interpreted to extend the benefit to all who would otherwise be entitled to. It was not for stretching it to an extent beyond its capacity. It was not to supplant something that was not contemplated. It was to give the widest amplitude, it could bear that would come only from the true spirit for which such law was enacted. Our Indian laws are century old. Laws are still prevalent that had been born before the Constitution was. The Courts of law time to time extended the scope to cope up with the prevalent situation. The commercial laws are no exception. Post-millennium period changed the economic scenario of our country drastically. By the advent of globalization our Courts would have to take a liberal approach while deciding a commercial litigation so that the foreign investors do not get any wrong signal. The Courts are quite aware of the limitations while expanding the scope of the stature. Post-millennium period changed the economic scenario of our country drastically. By the advent of globalization our Courts would have to take a liberal approach while deciding a commercial litigation so that the foreign investors do not get any wrong signal. The Courts are quite aware of the limitations while expanding the scope of the stature. At the same time the plea of hyper technicalities must not create hindrance to have a controversy particularly a commercial one, being decided on merit. In our humble view and with all humility may we say, if we cannot reach up to the expectation of the commercial world, our country would not be in a position to cope up with the advent of globalization and would lag behind. Keeping the above in the back of our mind, let us discuss the law on the subject for which we are invited to decide the present controversy. The law of winding up in India is celebrating its century in a sense, the Indian Companies Act, 1913, was the mother of the present Companies Act, 1956 that is now prevalent in the corporate field within the country. Law of winding up is a part of it. Our Division Bench presided over by one of us (Ashim Kumar Banerjee, J.) interpreted the law of winding up ([2013] 177 Company Cases 15 [Kotak Mahindra Bank Ltd. Vs. Eastern Spinning Mills and Industries Ltd.])The relevant extract is quoted below: “The creditor has to show they would have a debt more than Rs.500/-that the company failed or neglected to pay or otherwise unable to pay the debts because of its precarious financial condition that would make it just and equitable to pass an order of winding up. Neglect to pay is a fiction that would depend upon the notice to be served under section 434 (1) (a) that would permit the creditor to claim deemed insolvency as a fiction. However, that would not take away the creditor’s right to claim, the company is also commercially insolvent or otherwise unable to pay its debt. If we give a close look to section 433 (e) and (f) we would find, the company may be wound up if it is unable to pay its debt and the court is of the opinion, it is just and equitable that it should be wound up. If we give a close look to section 433 (e) and (f) we would find, the company may be wound up if it is unable to pay its debt and the court is of the opinion, it is just and equitable that it should be wound up. These two provisions could be invoked by the creditor as we find from section 439. Section 439 (1) (b) would permit any creditor to maintain the winding up petition. Sub section (2) would also include a secured creditor as a creditor within the meaning of sub section (1)(b). Section 434 (1) (a) would give right to a creditor by assignment or otherwise having a claim more than Rs.500/-to serve the notice of remand and if the demand is not satisfied he would be entitled to claim deemed insolvency as per sub section (2). From the analysis as above, we would find as follows:- i) A creditor could maintain the winding up petition. ii) A secured creditor is also creditor to maintain winding up petition. iii) A creditor should have the claim for Rs.500 and above. \iv) He would serve the notice of demand, that demand, if unattended and /or unsatisfied, would permit the creditor to claim deemed insolvency v) The creditor would maintain the winding up petition on the ground of inability to pay. vi) He would have to prove, it is otherwise just and equitable that the company should be wound up”. The counsel appearing for the parties cited several decisions before us on the issue that we would be discussing soon after. FACTS : The appellant appointed the respondent as its dealer to deal with computer and other related products belonging to the appellant. There was outstanding as claimed by the appellant to the extent of Rs.4,10,03,260.98 for the period September 22, 2008 to April 22, 2009. However, the purchase orders were mostly of 2008 as we find from the record. 2009 document was a credit invoice being dated April 22, 2009. Although the paper book is voluminous containing several documents and pleadings we feel, few e-mails would decide the fate of the case. The contents are quoted below: (i) From Subramaniam to Pravin February 27, 2009 “Dear Pravin, Despite our numerous demands to settle your outstanding obligations with us, your account continues to be in service arrears. Although the paper book is voluminous containing several documents and pleadings we feel, few e-mails would decide the fate of the case. The contents are quoted below: (i) From Subramaniam to Pravin February 27, 2009 “Dear Pravin, Despite our numerous demands to settle your outstanding obligations with us, your account continues to be in service arrears. Please note that the entire amount due and payable to us as of today is in the total sum of 42,138,240.18 INR. Unless we receive your settlement sum of 42,138,240.18 INR on or before 09-Mar-09, we will, without further reference to you, take appropriate action which may include but not limited to instructing our solicitors to commence legal proceedings or placing the account with a third party collection organization to recover the balance of the amounts due and owing by you to us. In such event, we will pursue reimbursement of all fees and costs incurred. We reserve all rights as stipulated in our agreement and under the law. We trust you realize the seriousness of this situation. Your urgent attention on this matter is required. Regards, SUBRAMANIAM MARIPPAN .” (ii) From Subramaniam to Pravin : …….Original Message……… “From: Mariappan, Subramaniam Sent: Wednesday, April 15, 2009 4 :32 PM TO: ‘Pravin Jalan’ Cc: Vohra, Nitin; Dixit, Surajprakash (INSPO) Subject: Jalan Infotech Hi Nitin, As discussed in the concall last week, please provide us the payment update by April 16. Thank you Regards, Subra” (iii) From Subramaniam (appellant) to Pravin : ……Original Message……. “From:Mariappan,Subramaniamn [mailto;subramaniam.mariappan@hp.com] Sent: Thursday, April 16, 2009 4:13 PM TO: Pravin Jalan Cc: Vohra, Nitin; Dixit, Surajprakash (INSPO) Subject: Jalan Infotech "Hi Pravin, We are still awaiting your reply on this Regards, Subra”. (iv) From Pravin to Subramaniam April 18, 2009 “With reference to concall we had on 9/04 regarding the payment plan for outstanding payment I would like to state the following - a) that we have been doing business with hp for last 10 years and have been regular in our payments. b) without any notice you had stopped billing 6j i.e. desktop material to partner like us somewhere in June 08, but surprisingly you had billed some 350 monitors before it and never bothered till January how it will get liquidated. c) you also stopped billing of kv products from February 09 to so calledrd model. b) without any notice you had stopped billing 6j i.e. desktop material to partner like us somewhere in June 08, but surprisingly you had billed some 350 monitors before it and never bothered till January how it will get liquidated. c) you also stopped billing of kv products from February 09 to so calledrd model. d) we had been exclusively working for erstwhile Compaq and then Hp for an period of more than 7 odd years and had initially developed the entire market in east for you 80% of your existing major partners were actually developed by us from scratch but as overheads were mounting and we took up other brands there was lot of resistance from certain section of management of HP to an extent of us going multi brand that we were deprived of buying pavilion as an brand till the last while all other partners were billed this product. e) the support of the spo team had dwindled to an extent were the business had come to an auto mode, the same could be proved by the fact that the claims of last two years has not been approved on technical ground and spo team has not bothered to take an extra effort to clear it. f) In June last year, overnight you had stopped a 10 year old relationship without any notice and at a dinner table we were told that – “thanks for the great job done in post but we have changed our distribution model for desktops and from tomorrow the billing for the same will not be done through JIPL. Naturally as an MNC you did not think even once as to the efforts put by us to develop the market and unilaterally changed the rules of the game to our sheer disadvantage and loss. In short with the change in your business model we also had to relook at our business as 35% of our business was with you. The business came to stand still overnight and we had to relook at the business as it was no longer viable. Slowly with the passage of a few months and the global recession things became worse and now we have for the time being stopped your distribution business and have only focused on selling our inventory and collecting debtors. The business came to stand still overnight and we had to relook at the business as it was no longer viable. Slowly with the passage of a few months and the global recession things became worse and now we have for the time being stopped your distribution business and have only focused on selling our inventory and collecting debtors. Even this has become more and more difficult because the customer also knows that his credit lines will not be renewed and he will not get any further stock fromus and as such the payments are getting delayed. We have no option but to be patient. We have in fact told the market that as there is lot of overdue due to recession we will be billing them once the payments are cleared. In view of the above the tentative payment plan is as under after deducting or adjusting our claims we may be able to pay you as follows : 20% by 30th June 20% by 31st July 20% by 31st August 20% by 30th September 20% by 31st October I would request your cooperation and would like to standby with us in these difficult times. This communication is without prejudice”. (v) From Subramaniam to Pravin : April 20, 2009 “Hi Pravin, We have discussed this internally with our Credit Manager would like to counter propose with the payment plan below (after taking into account approx deduction of claims); 28 April 1. 42Cr (USD290k) 28 May 1. 42Cr (USD 290k) 28 June 1. 42Cr (USD290k) Kindly confirm if you are acceptable to the counter proposal”. (vii) From Pravin to Nitin : April 23, 2009 “Hi nitin, Reference discussion I had with you. I am giving you the revised payment plan. 15th June 20% 15th July 25% 15th August 25% 15th Sep 30% (vi) From Pravin to Nitin : April 24, 2009 “Hi Nitin, I had given you the payment plan which I feel was possible from our side. I would once again request you to please accept our payment plan and confirm so the initial payment could be made before the commit day. The intent is to pay and basis that I had committed dates below. Request your understanding and cooperation and a confirmation. I would once again request you to please accept our payment plan and confirm so the initial payment could be made before the commit day. The intent is to pay and basis that I had committed dates below. Request your understanding and cooperation and a confirmation. Rgds Pravin Jalan.” (viii) From Nitin to Pravin : April 24, 2009 Hi Pravin, As discussed yesterday, below is our Final counter proposal to Jalan:- Month USD INR 25th April 100,000.00 4,900,000.00 15th May 100,000.00 4,900,000.00 15th June145,137,07 7,111,716.55 15th July 145,137,07 7,111,716.55 15th Aug 145,137,07 7,111,716.55 15th Sep 145,137,07 7,111,716.55 780,548.29 38,246,866.21 On the strength of the above materials the appellant issued a statutory notice of demand that the respondent replied. The respondent would deny having committed any wrong. On the contrary, they charged the appellant for ignoring them in the matter of maintaining business relationship. They would say, because of the wrong policy of the appellant, they suffered loss to the extent of Rs.795.74 lacs. They denied, having withheld the sum of Rs.4,10,03,260.98. They would lastly contend, question of payment of interest would not arise at all. Six page letter did not deny specifically the liability of the company to the extent as claimed. It highlighted sufferance that the respondent had to bear due to indifferent attitude of the appellant. They also alleged that in view of severing of business relationship, their dealers did not make any prompt payment meaning thereby delay in realization of the precedents of the equipments delayed the ultimate payment. In paragraph-8 the respondent contended, “the business cycle was such that we had to bear interest upon the said amount and could not repay it when they could sell the goods and collect the payments with your company not supporting our efforts and on the contrary pushing its excess products, it became a loss-loss situation for us”. In paragraph-10 the company made a grievance, “you had agreed to give credit notes for a sum of Rs.37,56,746.00 raised by us from time to time, but the same was never addressed till date”. If one would read the letter as a whole he would get an idea, the defence was nothing but a confession and avoidance. JUDGMENT AND ORDER IMPUGNED : The learned Judge by His Lordship’s judgment and order dated December 3, 2012 declined to admit the winding up petition. His Lordship would say, the parties exchanged e-mails. If one would read the letter as a whole he would get an idea, the defence was nothing but a confession and avoidance. JUDGMENT AND ORDER IMPUGNED : The learned Judge by His Lordship’s judgment and order dated December 3, 2012 declined to admit the winding up petition. His Lordship would say, the parties exchanged e-mails. His Lordship categorically observed, “the company has not questioned the authenticity of the mail”. His Lordship considered reply to the statutory notice and observed, e-mail exchanged between the parties in April, 2009 did not indicate claims in the nature of damage. His Lordship observed, “there is no doubt that the correspondence between the parties in April, 2009 gives the impression that the company admitted and acknowledged that the company owed money to the petitioner. Yet, on the basis of the mail exchanged at the relevant time, the exact quantum of the company’s indebtedness to the petitioner cannot be assessed”. His Lordship further observed, “while it is evident that vague claims under several heads have been made by the company upon receipt of the statutory notice, it cannot be lost sight of that for a petition to be admitted in this jurisdiction, the petitioner has ordinarily to, not only say that a sum in excess of Rs.5, 00.00 is due and owing to it from the company, but also demonstrate the quantum of debt due. At the very least, on the basis of documents contained in the petition which have been relied upon in course of the hearing, it cannot be said that the petitioner has been able to establish the amount which is due and owing from the company”. His Lordship lastly observed, “it does not appear that the defence is altogether moonshine or without basis”. RIVAL CONTENTIONS : Mr. Siddhartha Mitra, learned senior counsel appearing for the appellant advanced his argument by discussing the law of winding up. According to him, when the claim of the appellant was specific it could never be resisted except through a bona fide dispute. In case such dispute was raised by setting up a counter-claim such counter-claim must be specific and not vague. In the instant case, the appellant had a specific claim that the respondent miserably failed to counter act. According to him, when the claim of the appellant was specific it could never be resisted except through a bona fide dispute. In case such dispute was raised by setting up a counter-claim such counter-claim must be specific and not vague. In the instant case, the appellant had a specific claim that the respondent miserably failed to counter act. The alleged counter-claim was set up for the first time in reply to the statutory notice of demand that was inconsistent with the e-mails, the parties exchanged where the company unequivocally offered to pay off the dues of the appellant in a phased manner. Per contra, Mr. Pratap Chatterjee, learned senior counsel would contend, laws of limitation hopelessly barred the claim. The e-mails had no digital signature as required in law, hence, could not be relied upon. If e-mails could be avoided, the claim would be hopelessly barred by laws of limitation as the purchase orders were all dated 2008 and the winding up petition was filed in 2012 after about four years. As and by way of alternative submission, Mr. Chatterjee would contend, even if the e-mails could be relied upon, those could not be said to be unequivocal promise to pay or a definite acknowledgement of liability that would save the limitation. According to Mr. Chatterjee, the claim of the appellant was bona fide disputed. In any event, since the plea of limitation was successfully raised that would itself resist admission of winding up and the order of the learned Single Judge would not require any interference. OUR VIEW ON THE FACTUAL SCENARIO : The e-mails would speak for them. His Lordship correctly observed, the e-mails would prove the indebtedness of the company. His Lordship also correctly observed, the counter claim was vague. If we try to give a harmonious construction to these two observations and compare it with the other that the defence was not moonshine or without any basis, we would fail. His Lordship earlier in a given case [2008] 145 Company Cases 524 [Siddharth Automobiles Ltd., In re and Ashok Leyland Ltd.]dealt with identical defence and would observe, a bona fide dispute on facts or in law could only resist an order of admission of a petition for winding up. In the said case, the company unequivocally offered to supply vehicles worth Rs.60 lakhs to the petitioner. In the said case, the company unequivocally offered to supply vehicles worth Rs.60 lakhs to the petitioner. The company was not able to demonstrate any further sum that fell due, to pay on any subsequent date that could detract from its admitted indebtedness. His Lordship rejected the defence of the company to the extent, since its commission was not settled as payable by the petitioner on account of sale of vehicle, the value of the vehicle could not be paid. As observed by us in a given case, an application for winding up could only be resisted by raising a bona fide dispute. Nothing short of it could resist an order of admission. In another case [2004] 3 Calcutta Law Times 380 [Vinayak Oil and Fats Private Ltd. Vs. Andre (Cayman Islands) Trading Co. Ltd.) one of us sitting singly (Ashim Kumar Banerjee, J.) while dealing with the question of enforcement of a foreign Award through winding up petition, dealt with the issue and observed, “Under section 433 a creditor can bring an action under sub section (e) provided he has just debt payable by the company and the company failed and neglected to pay and/or secured such claim despite statutory notice of demand. Hence, if an action is brought by a creditor for winding up of a company on account of non-payment of debt and defence is taken by the company the Court is only to prima facie examine the defence of the company and if the Court feels that the said defence is bona fide and there is even a possibility of success in case the dispute is relegated to a regular trial winding up is refused. W hether the defence can be sustained or not the winding up Court is only to examine the same prima facie. Neither the winding up Court is competent to finally adjudicate the rights of the parties on account of the claim nor does it have authority in law. If a creditor has claim against the debtor the law has prescribed its remedy. Those remedies are complete code by themselves. Merely because the debtor is a corporate entity the creditor cannot enforce hid debt as a matter of a right in a winding up proceeding. If a creditor has claim against the debtor the law has prescribed its remedy. Those remedies are complete code by themselves. Merely because the debtor is a corporate entity the creditor cannot enforce hid debt as a matter of a right in a winding up proceeding. It can only ask for winding up of the debtor and he becomes successful if the defence taken by the company, according to the Court, prima facie not sustainable”. The Apex Court while deciding a Calcutta Case (AIR 2005 Supreme Court 4175 [Mediqup Systems Pvt. Ltd. Vs Proxima Medical Systems G.M.B.H.) observed as follows: “This Court in catena of decisions held that an order under Section 433(e) of the Companies Act is 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 and that the inability referred to in the expression ‘unable to pay its dues’ in Section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will be allowed to be utilized merely as a means for realising debts due from a company”. Similarly, the Apex Court in two earlier cases (42 Company Cases 125 [Madhusudan Gordhandas and Co. Vs. Madhu Woolem Industries Pvt. Ltd.]and [1994] Vol. 79 Company Cases 835 [ Pradeshiya Industrial and Investment Corporation of uttar Pradesh Vs. North India Petro Chemicals Ltd. and Another], observed as follows : “Two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. (See In re London and Paris Banking Corporation). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (See In re Brighton Club and Norfolk Hotel Co. Ltd.). (See In re London and Paris Banking Corporation). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (See In re Brighton Club and Norfolk Hotel Co. Ltd.). 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. (See In re A Company). 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. (See In re Tweeds Garages Ltd.). The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law, and, thirdly, the company adduces prima facie proof of the facts on which the defence depends.” “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. (See A Company, In re [1894] 94 SJ 369; [1894] 2 Ch 349 (Ch D). W here, 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. (See Tweeds Garages Ltd., In re [1962] Ch 406; [1962] 32 Comp Case 795 (Ch D). The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law, and, thirdly, the company adduces prima facie proof of the facts on which the defence depends.” In the later case the Apex Court relying on an English decision ([1962] Vol. 1 All E.R. 121 [Re Tweeds Garages Ltd.]), dealt with the issue of plea of adjustment and observed, “where there is no dispute (and there is none here) that the petitioner is a creditor for a sum which would otherwise entitled him to a winding-up order, a dispute as to the precise sum it is owed to him is not of itself a sufficient answer to his petition”. The plea of adjustment was dealt with by Apex Court in a case [2009] 147 Company Cases 490 [Vijay Industries Vs. Natl Technologies Ltd.]. The Apex Court considered the earlier precedents including those referred to above and observed, the principles on which the Court acts are firstly, the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law, and, thirdly, the company adduced prima facie proof of the facts on which the defence depends. On a combined reading of the law on the subject we would find, basic concept of law of winding up is: - (i) The petitioning creditor must have a definite specific amount due and owing by the company to it; (ii) The company did not have any sustainable defence to the claim; (iii) Even if a part of it is disputed, the winding up petition could be admitted for the balance part; (iv) To resist a winding up, the defence of the company must be a bona fide one and on a prima facie view sustainable. In the present case, as we have observed earlier, the e-mails exchanged between the parties would foreclose the scope of the company to dispute any part of the claim. Subsequent plea on damage could not be said to be a bona fide one. W hether a dispute is bona fide or not, could be derived from the contemporaneous conduct of the parties. In one of the e-mails the company would suggest, they would make final payment on adjustment. However, such adjustment should certainly relate to a sum less than the claim of the petitioning creditor. In course of hearing we made repeated query as to what sum was in contemplation of the company to be adjusted against the dues of the petitioning creditor. We did not get any reply. Mr. Chatterjee, learned senior counsel appearing for the company would raise plea of limitation. We are not able to appreciate. In course of hearing we made repeated query as to what sum was in contemplation of the company to be adjusted against the dues of the petitioning creditor. We did not get any reply. Mr. Chatterjee, learned senior counsel appearing for the company would raise plea of limitation. We are not able to appreciate. In a claim for money, under the law of limitation one has to approach the Court within three years from the date when the money became due and payable. Here, the parties did have a long-standing business relationship. The company acted as a distributor. There was debtor-creditor relationship prevalent for a long time. The last credit invoice was of April 2009. Even if we ignore the credit invoice and take the dates of the purchase orders we cannot say, the claim was barred, being not raised within three years. Jural relationship between the two parties would depend upon the series of transactions and the conduct of the parties, the nature of dealings, and the contemporaneous reaction. The law of limitation is enacted to prevent any stale claim to be raised as and when a litigant would desire that would create a tremendous uncertainty to a right and liability preventing any controversy to reach finality. In a money claim if money becomes due and payable on a particular date and someone sleeps over his right and demands it beyond three years period, the law would not support his conduct. However, the reason for his not approaching the Court within the period of limitation is also taken care of and Section 4 to 26 would take care of it. If we give a combined reading of the law of limitation we would find that such law would not prevent any live claim to be brought in Court, irrespective of the period taken by the plaintiff from the date when the cause of action first accrued. In the instant case, the parties were having a running and continuous account maintained by them. They maintained a jural relationship. They were exchanging mails making proposals and counter proposals to square off the dues. How could that period be ignored in the matter of computation of period of limitation? Mr. Chatterjee would suggest, we should ignore the mails, as it did not contain any digital signature. They maintained a jural relationship. They were exchanging mails making proposals and counter proposals to square off the dues. How could that period be ignored in the matter of computation of period of limitation? Mr. Chatterjee would suggest, we should ignore the mails, as it did not contain any digital signature. He probably missed out the specific finding of the learned Judge to the extent, the company did not question the authenticity of the mails. Mr. Chatterjee would rely upon two unreported decisions. In the first case [Unreported decision in C.P. No. 216 of 2010] [Unit Construction Company Private Ltd. Vs. Simplex), the statement of account was the seat anchor to save the limitation. The learned Judge found it not signed by anyone on behalf of the company. In the second case [Unreported decision in G.A. No. 1784 of 2010 [Tata Steel Limited Vs. Puja Ferro Alloys Limited] learned Judge while considering application for summary judgment considered Section 18 of the Limitation Act and observed, the electronic mail message did not have the digital signature. On a reading of the said judgment, it appears, possibly the mail was in dispute. By the advancement of Science, one is entitled to send mail through electronic device that would have a digital signature if the addressor wants. Such process is recognized by the Information Technology Act, 2000. Since the present case did not have any dispute as regards authenticity of the mails, such question would not arise. One of us sitting singly dealt with the issue of claims and cross claims, [2005] 2 CHN [VIP Buildcom Pvt. Ltd. Vs. Everest Kanto Cylinder Ltd.] the Single Bench observed, “in the instant case, the amount is not in dispute. It is a case of adjustment of cross-claim. W hen it is an adjustment of cross-claim the party making such cross-claim must come with a definite case that cross-claim is indisputably payable”. Our Division Bench in a given case [1994] 2 Calcutta Law Times [Manick Chand Jajodia Vs. Lalchand Agarwal] dealt with the issue of admission in an application under Order 12 Rule 6 of the Code of Civil Procedure. The Division Bench observed, the admission must be unambiguous, unconditional or unequivocal. If the defence was likely to succeed, the application for judgment upon admission would fail. We are in doubt as to whether the defence was bona fide or not. The Division Bench observed, the admission must be unambiguous, unconditional or unequivocal. If the defence was likely to succeed, the application for judgment upon admission would fail. We are in doubt as to whether the defence was bona fide or not. Even if we accept the contention, the counter claim is genuine, so long it is not specific it would not be in a position to resist a specific claim of the petitioning creditor. With deepest regard we have for His Lordship and with all humility may we say, the present case is not as such that the company would go scot-free having an unconditional order resisting an order of admission. In course of hearing we enquired, what was the wroth of the company. We got a reply, it was a trading company and probably had no tangible asset, at least to secure the debt of the petitioning creditor being the appellant that would prompt us to ask the company to secure the claim of the appellant being the petitioning creditor. RESULT : The appeal succeeds in part and is allowed. The respondent company is directed to secure the claim of the appellant by offering cash security or any other co-lateral security to the satisfaction of the Registrar, Original Side. Such security must be furnished within a period of four weeks from date. In default, the winding up petition would stand admitted for a sum of Rs.4,10,03,260.98 together with interest at the rate of 9% per annum on and from the date of receipt of statutory notice of demand until payment and the petition for winding up would stand revived and appellant would be entitled to approach the learned Company Judge for appropriate direction for advertisement as well as fixation of returnable date. Otherwise, the petition for winding up would remand permanently stayed. In case security is furnished in terms of the forgoing judgment and order the appellant would be at liberty to file a civil suit inter alia making claim in respect of the subject matter of the controversy. In case such suit is filed within a period of six weeks from the date of intimation of furnishing of security the appellant would be entitled to the benefit of Section 14 of the Limitation Act as they were proceeding with their claim bona fide before this Court. In case such suit is filed within a period of six weeks from the date of intimation of furnishing of security the appellant would be entitled to the benefit of Section 14 of the Limitation Act as they were proceeding with their claim bona fide before this Court. In case the company offers cash security, the Registrar, Original Side would keep the same in a suitable interest bearing fixed deposit to be kept renewed from time to time until disposal of the civil suit to be filed in terms of the liberty given here. Appeal is disposed of without any order as to costs. There would be no order as to costs. Dr. Mrinal Kanti Chaudhuri, J: I agree.