JUDGMENT : S.R. Brahmbhatt, J. Heard learned advocates appearing for the parties. 2. The petitioner has taken out this petition under Sections 433, 434 and 439 of the Companies Act, 1956 with following prayers; "(A) That the Respondents Company viz. M/s Deviyani Tex-Chem Pvt. Ltd., be wound up by this Hon'ble Court under the provisions of The Companies Act, 1956 and the Official Liquidator attached to this Hon'ble Court be appointed as Liquidator of the Respondent Company with all the powers under the Act; (B) That pending admission, hearing and final disposal of this petition by this Hon'ble Court, the Official Liquidator attached to this Hon'ble Court be appointed as the Liquidator of the Respondent Company provisionally; (C) The cost of the petition be awarded. (D) That any other suitable and appropriate relief or relief's be awarded as deemed fit to be just and proper under the circumstances." Thus, on account of the averments made in the petition and the accompanying documents a prayer is made for seeking appropriate orders of winding up the respondent Company on account of alleged inability of the Company in discharging its liabilities. 3. Learned advocate for the petitioner invited this Court's attention to page Nos.14 to 19 and 67 and submitted that close perusal of all these would indicate that the original sum of loan advanced to the Company at the rate of 18% of the interest cannot be said to have been repaid and the Company has in fact issued confirmatory letter to this effect and acknowledged its liability, as could be seen from the balance sheet file and at least since 2008 the Company also in its record has indicated that there is outstanding to be paid to the petitioner. However, unfortunately, after 2008 the balance sheet file though did not indicate the name of the petitioner, but the outstanding amount is reflected in the record and, therefore, the statutory notice came to be issued which remained unanswered and therefore the present petition is required to be filed. 4. However, unfortunately, after 2008 the balance sheet file though did not indicate the name of the petitioner, but the outstanding amount is reflected in the record and, therefore, the statutory notice came to be issued which remained unanswered and therefore the present petition is required to be filed. 4. Learned advocate appearing for the petitioner contended that the petition is sought to be resisted on account of so called dispute with regard to the rate of interest and the petitioner's filing a Summary Suit before the Bombay High Court, but these two grounds are not available to the respondent Company for resisting this petition as both the grounds are said to be not germane for nonsuiting the petitioner on account thereof. 5. Learned advocate appearing for the petitioner invited this Court's attention to the decision of the Apex Court rendered in case of Vijay Industries v. Natl Technologies Limited, reported in (2009) 3 Supreme Court Cases 527, with special emphasis upon observation on paragraph No.33. It was contended that the dispute in respect of interest cannot be said to be so genuine dispute as to successfully resist the winding up petition. 6. Learned advocate for the petitioner also invited this Court's attention to the decision rendered by the Allahabad High Court in case of Nepa Ltd. v. Jnanamandal Ltd., reported in 2001 (107) Company Cases 240, with special emphasis upon observations of the Court in paragraph Nos.19 and 20 and it was contended that filing of the Summary Suit in itself would not be a ground for non-suiting the petitioner under winding up petition. 7. Learned advocate for the petitioner while answering the contention qua suppression of fact invited this Court's attention to the plaint of the Suit which has been produced on record by the respondent Company to indicate that the claim in the suit, which came to be filed in the year 2011, was confined to the date of filing of the Suit only whereas in the instant petition the petitioner has claimed the amount right from 1997 till the date of proposed winding up and therefore the interest claimed 6% only. Therefore, this cannot be said to be a duplication or a repetition of action so as to hit by suppression of fact. 8. Therefore, this cannot be said to be a duplication or a repetition of action so as to hit by suppression of fact. 8. Learned advocate appearing for the respondent Company invited this Court's attention to page No. 172 and indicated that the amount of loan was Rs. 8,00,000/- in total and out of which, before the winding up petition was filed, Rs. 6,30,034/- came to be paid and which has not been disputed or which cannot be disputed and the amount of Rs. 1,69,966/-, which was outstanding of the principal amount, is deposited in this Court under the order dated 05.03.2013, passed by this Court (Coram: R.M. Chhaya, J.), therefore, this petition cannot be said to be maintainable so far as the winding up proceedings are concerned. Apart there from it was contended that the claim of interest to be 18% is absolutely illusory and did not indicate that it was ever agreed upon by anyone. The interest claim at the rate of 18% is not justified and attention of this Court is invited to the various documentary evidences indicating that at different stages different rate of amount is mentioned and to justify the said submission counsel for the respondent Company invited this Court's attention to the plaint of the Suit filed by the petitioner in the Bombay High Court and indicated there from that the petitioner agreed to confine his claim to 6% interest only. 9. Learned advocate appearing for the respondent Company further submitted that in page no.12 at paragraph No.6 of the petition there is a clear averment qua petitioner not filing any other petition or proceeding in any other Court. However, the filing of the Suit is evident and therefore, this petition is suffering from the vice of suppression of material facts and therefore on this ground also the petition is required to be dismissed. 10. Learned advocate for the respondent Company further submitted that the amount of the principal even if ordered to be paid to the petitioner, then the respondent has no objection, as it is forming part of the principal amount. 10. Learned advocate for the respondent Company further submitted that the amount of the principal even if ordered to be paid to the petitioner, then the respondent has no objection, as it is forming part of the principal amount. However, so far as, the interest amount of 6% is there even that has been accepted and willingness is shown by the Company to make the payment if the interest rate is confined to 6% only, but that was with a view to settle the entire matter and that may not be said to be a binding hereafter. 11. The Court is of the view that the petition is required to be dismissed for the following reasons namely; (i) The Court is convinced that the petitioner is not coming to the Court with clean hand, inasmuch as, it was a duty cast upon the petitioner to disclose the facts of filing of the suit, plaint whereof is placed on record by the respondent Company. The petitioner is, therefore, while mentioning in page no.12 at paragraph No.6, not stated correct facts and on this ground alone the petition should have been dismissed, as the petitioner could not be said to have come with clean hand before the Court. The explanation tendered on behalf of the petitioner for indicating difference between the claim in the Suit and in the petition is to say the least absolutely untenable, as on the face of it, the claim of the petitioner said to have arisen only on account of the loan principal amount whereof was Rs. 8,00,000/- and when this factum was also subject matter of Suit, which had been filed in the year 2011, non mentioning thereof by merely saying that the claim of the Suit is confined to the year 2011 and the present petition contains claim up to the proposed date of winding up is, in my view merely a lame attempt to gloss over the glaring lacuna or deliberate suppression of fact, and therefore, this petition is required to be dismissed on this ground also. (ii) The Court is also convinced qua the submission canvassed on behalf of the respondent Company that there exists a genuine dispute qua 18% interest claimed in this petition on behalf of the petitioner. (ii) The Court is also convinced qua the submission canvassed on behalf of the respondent Company that there exists a genuine dispute qua 18% interest claimed in this petition on behalf of the petitioner. The agreement indicative of 18% interest is not coming forward anywhere or rather it can be said that there is a clear indisputable fact that there exists no agreement which could legitimately indicate that there was ever agreed rate of interest of 18%, as sought to be raised in this petition. The documents in the form of Annexures C to H and M from page 22 onwards would clearly indicate that the different rate of interest were mentioned at different time. Moreover, the averments made in the plaint attention of the Court whereon was drown, is required to be set out as under: "13. The plaintiff states that though the Defendant was liable to pay to the Plaintiff interest at the rate of 18% p.a. and Defendant in fact initially made payment at that rate however, for the subsequent years in the Statement of Account they have charged interest at the variable rate and the last of such interest is calculated at the rate of 6% p.a. only. Though the Plaintiff is entitled for interest at the rate of 18% p.a. however with a view to avoid any dispute the Plaintiff has restricted his claim for interest for the balance period in the present Suit at the rate of 6% p.a. only." It would clearly indicate that the petitioner also did not seriously claim or could not have claimed 18% interest as there is a clear admission in his part in the form of averment in the Suit, paragraph whereof is set out hereinabove. Thus, when the petitioner has himself given up his claim for 18%, for the reason best known to him, then claiming 18% interest in this petition would amount to approbating or reprobating, which cannot be countenanced by this Court in any manner and therefore, this Court is convinced that there exists a genuine dispute qua the rate of interest and therefore on that ground also the petition cannot be permitted to be maintained. (iii) The Court is of the considered view that when the sizable amount of the principal was paid before filing of the winding up petition and when the petitioner is not coming with the clean hand before the Court and not indicating the institution of Suit and pendency of the Suit in Bombay High Court, then the petition is required to be dismissed. (iv) The authority cited at the bar in case of Vijay Industries (supra) is also of no avail to the petitioner as the facts in that case clearly indicate that there was absolutely no dispute qua the agreed rate of interest, whereas in the instant case, the rate of interest could not have been said to have been agreed at any point of time as the very basic document which would have been in support thereof is not available and therefore this Court is unable to accept the contention canvassed on behalf of the petitioner that the interest dispute would not be available for non suiting the petitioner in winding up proceeding. On the contrary, the Court is more than convinced so far as the present case is concerned that there exists a genuine dispute qua rate of interest. (v) The Court is also unable to accept the contention canvassed on behalf of the petitioner relying upon the decision of the Allahabad High Court in case of Nepa Ltd. (supra), as the present case is on different facts which distinguish the present case from the case of Allahabad High Court so as to not be governed by the ratio thereunder. Therefore, on this count also the petition cannot be permitted to be maintained. 12. The Court is of the view that in light of the averments made in the affidavit-in-reply when the respondent Company has clearly accepted its liability for principal amount, the amount deposited in this Court may not be refunded to the Company and it is required to be ordered to be paid to the petitioner that will make up his principal amount and the Court need not observe anything more on this aspect, as the aforesaid observations are required to be made only with a view to examine the controversy before this Court and, therefore, obviously they will have no effect upon any other proceedings. The Court is, therefore, convinced in ordering disbursement of the amount of Rs. The Court is, therefore, convinced in ordering disbursement of the amount of Rs. 1,69,966/- deposited in this Court to the petitioner on appropriate verification by regular mode of payment and the petition is, therefore, required to be dismissed and is accordingly dismissed. Notice is discharged. However, there shall be no order as to costs.