JUDGMENT : K.S. Jhaveri, J. 1. By way of this appeal, the appellant has challenged the judgment and order dated May 2, 2014--since reported in (Manoj Maneklal Mehta v. Deviyani Tex-Chem P. Ltd. (No. 1) [2015] 189 Comp Cas 185 (Guj)) passed by the learned company judge in Company Petition No. 181 of 2011, whereby the learned company judge has not entertained the petition for winding up of the respondent-company. The learned advocate Mr. M.H. Pathak for the appellant contended that the learned company judge has committed error in refusing to entertain the petition for winding up of the respondent-company. 2. He contended that the learned company judge ought to have appreciated that the respondent-company is closed and it has no operation. The balance-sheet on record of the court which was prior to March 31, 2012, demonstrates no revenue from the operation of the company. He contended that the appellant has produced balance-sheet and other materials on record to show that the respondent-company is completely closed. However, the learned company judge did not even refer to any material and to deal with the contentions raised in this court. 3. He further contended that the learned company judge has committed an error in observing that the appellant has suppressed the fact of pendency of summary suit filed by the appellant against the respondents. The learned company judge ought to have appreciated that it is a settled principle of law that both the proceedings are for different purposes and not for the same reliefs. It is equally settled law that mere pendency of the civil suit cannot be a ground to deny winding up of the company otherwise, the substratum of company is lost. 4. He contended that the learned company judge ought to have appreciated that the respondent-company itself had acknowledged an amount of Rs. 10,58,274 as the amount due and payable to the appellant in the balance-sheet as on March 31, 2009. The respondent has even issued TDS certificate in favour of the appellant for the amount of tax deducted on the interest amount. He contended that the learned company judge has committed error in observing that the respondent has paid sizeable of the principal amount to the appellant. Even the respondent acknowledged debt of Rs. The respondent has even issued TDS certificate in favour of the appellant for the amount of tax deducted on the interest amount. He contended that the learned company judge has committed error in observing that the respondent has paid sizeable of the principal amount to the appellant. Even the respondent acknowledged debt of Rs. 10,58,274 as on March 31, 2009, to the appellant and if interest at 6 per cent is added on this outstanding amount would be Rs. 15,35,018 as on June 30, 2014. 5. He further contended that even otherwise, the impugned order passed by the learned company judge is illegal, unjust, unreasonable and contrary to facts and circumstances of the case as well as against the settled principle of law. Therefore, the same is required to be quashed and set aside. 6. The learned advocate Ms. V.A. Parikh appearing for the respondent has supported the order passed by the learned company judge and submitted that order passed by the learned company judge is just and proper, therefore, no interference is required by this court and appeal may be dismissed. 7. Except that no other submissions has been made by either parties in support of their respective case. 8. We have heard learned counsels for the respective parties at length and in great detail. We have also perused the judgment and order passed by the learned company judge. The learned company judge, while passing the order, has made the following observations in paragraphs Nos. 11 and 12, which are as under (page 189 of 189 Comp Cas): "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 hands, 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 hands before the court. 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 hands 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 per cent interest claimed in this petition on behalf of the petitioner. The agreement indicative of 18 per cent 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 per cent, 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 drawn, 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 per cent per annum 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 per cent per annum only. Though the plaintiff is entitled for interest at the rate of 18 per cent per annum 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 per cent per annum only.' It would clearly indicate that the petitioner also did not seriously claim or could not have claimed 18 per cent interest as there is a clear admission on 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 per cent, for the reason best known to him, then claiming 18 per cent 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 hands before the court and not indicating the institution of suit and pendency of the suit in the Bombay High Court, then the petition is required to be dismissed. (iv) The authority cited at the bar in the case of Vijay Industries v. NATL Technologies Ltd. reported in [2009] 147 Comp Cas 490 (SC) : [2009] 3 SCC 527 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. 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 the case of NEPA Ltd. v. Jnanamandal Ltd. reported in [2001] 107 Comp Cas 240 (All), 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. The court is of the view that in the 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. 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." 9. Considering the facts and circumstances of the case, in our view, the view taken by the learned company judge is just and proper. The suppression of fact in respect of filing of suit before the competent court cannot be taken lightly. Therefore, we are in complete agreement with the view taken by the learned company judge. We do not find any infirmity in the order. Therefore, the same deserves to be dismissed and is dismissed accordingly. Since the main appeal has been dismissed by this court, no order on civil application. The same is also disposed of. Appeal dismissed.