JUDGMENT : V.M. Pancholi, J. 1. The petitioner has filed this petition under sections 433 and 434 of the Companies Act, 1956, in which the petitioner has prayed that the respondent-company be wound up by an order of the court, and the official liquidator attached with this court be appointed as the liquidator of the said company with all the powers under the Act, and, during the pendency and final disposal of this petition, the official liquidator attached to this court be appointed as the provisional liquidator of the respondent-company. Heard the learned advocate Mr. Navin K. Pahwa with the learned advocate Mr. Mihir H. Pathak for the petitioner, and the learned advocate Ms. Vaibhavi K. Parikli for the respondent-company. 2. The learned advocate for the petitioner has pointed out that the respondent-company was incorporated on July 5, 1990 and is registered with the Registrar of Companies, Gujarat. The main objects of the respondent-company are stated in paragraph No. 4 of the petition. The learned advocate for the petitioner submitted that the respondent-company sought financial assistance from the petitioner in the year 1996-97. Therefore, the petitioner had advanced a sum of Rs. 3,40,000 on the condition that the respondent-company has to repay the said amount with 18 per cent, interest per annum. The said condition was acceptable to and agreed by the respondent-company. It is contended that the respondent-company has accepted its liability towards the petitioner. The said fact can be reflected from the letters of confirmation issued by the respondent-company to the Income-tax Department. Learned counsel referred to the said documentary evidence produced at annexure A collectively with the compilation. He further contended that in the year 2008, the respondent-company had paid a sum of Rs. 2,28,000 to the petitioner. Except this payment, no other payments were made by the respondent-company to the petitioner. Learned counsel contended that the respondent-company was paying interest on the financial assistance given by the petitioner, i.e., on the loan given by the petitioner, and the respondent-company was also duly deducting the amount of TDS from such interest income of the petitioner. At this stage, the learned advocate for the petitioner has referred to the documents, which are annexed with the petition in support of his contention. 3. The learned advocate Mr. At this stage, the learned advocate for the petitioner has referred to the documents, which are annexed with the petition in support of his contention. 3. The learned advocate Mr. Navin Pahwa for the petitioner further pointed out the schedule attached to and forming part of the accounts of the respondent-company as on March 31, 2009 and submitted that the respondent-company has shown Rs. 7,23,408 by way of unsecured loans against the name of the petitioner. He, therefore, submitted that once the respondent-company has shown the aforesaid amount as outstanding unsecured loan in the balance-sheet, it can be said that the respondent-company has acknowledged its debts. He further contended that the petitioner had asked the respondent-company to repay the outstanding amount. However, the respondent-company has failed, and neglected to pay the same, and therefore, the petitioner issued a notice dated December 14, 2010, which was duly served to the respondent-company. However, the respondent-company has failed to make the payment, nor it has given any reply to the said notice. It is pointed out that with a view to give further time to the respondent-company, another notice was given on April 13, 2011, which was also duly served. No reply was given to the said notice also. The petitioner, thereafter, filed the winding up petition before this court, which was withdrawn by the petitioner with a permission to issue fresh composite notice to the respondent-company. The petitioner, thereafter, issued statutory notice dated April 2, 2012, to the respondent-company. Similarly, another notice dated July 10, 2012, was also issued to the respondent-company. The respondent-company gave reply through its advocate on July 18, 2012, wherein some technical objections were raised. It is, therefore, submitted by the learned advocate that the respondent-company has failed, and neglected to pay the outstanding dues to the petitioner, and therefore, this petition is filed. The learned advocate for the petitioner further submitted that the respondent-company has filed affidavit-in-reply in this proceedings. However, the dispute raised by the respondent-company cannot be said to be a reasonable and bona fide dispute, and therefore, this court may admit this petition, and order for publication of advertisement may be passed. 4. On the other hand, the learned advocate Ms. Vaibhai Parikh appearing for the respondent-company mainly submitted that this petition is nothing but an abuse of process of the court, and the present proceedings are barred by limitation. 4. On the other hand, the learned advocate Ms. Vaibhai Parikh appearing for the respondent-company mainly submitted that this petition is nothing but an abuse of process of the court, and the present proceedings are barred by limitation. She contended that the said transaction pertains to the sum advanced in the month of February 1997. The last transaction between both the parties had taken place on March 31, 2008, whereas the present petition has been filed on August 29, 2012. Thus, when the claim of the petitioner is time-barred, the present petition is not maintainable, and therefore, without going into the merits of the present case, this court may dismiss the same. 5. The learned advocate for the respondent-company further contended that in the present proceedings certain facts, which are disputed by the respondent-company, and various issues pertaining to the details of accounts, amount of interest, and the claims made by the petitioner, are required to be verified, and therefore, while exercising the jurisdiction under the Companies Act, 1956, this court would not like to go into the same. In fact, the petitioner has already filed a suit before the High Court of Bombay. She contended that the winding up petition is not maintainable, except when the company is unable to pay its dues, and/or has lost its substratum. She submitted that in the present case, the respondent-company is neither unable to pay its debts, nor has neglected to pay the same, nor has lost its substratum. The respondent-company is commercially solvent, and capable of discharging its debts, if legally due. 6. The learned advocate for the respondent-company thereafter contended that the respondent-company has not at all accepted its liability as alleged by the petitioner. There was neither any mutual understanding nor agreement between the parties with regard to either the rate of interest or the payment thereof at the time of advancing the said amount. The respondent-company has never agreed or accepted to pay interest at the rate of 18 per cent, per annum to the petitioner as alleged. Even then, the respondent-company has paid the interest to the petitioner from time to time, which has been accepted by the petitioner, without any dispute. Interest was paid at different rates till the year 2008, for which TDS Certificates were also issued, and the petitioner has accepted the same, without any dispute. Even then, the respondent-company has paid the interest to the petitioner from time to time, which has been accepted by the petitioner, without any dispute. Interest was paid at different rates till the year 2008, for which TDS Certificates were also issued, and the petitioner has accepted the same, without any dispute. The petitioner at no point of time raised any objection with regard to the rate of interest. Further, the petitioner has already filed Summary Suit No. 2709 of 2011 against the respondent-company before the High Court of Bombay, wherein the petitioner has claimed Rs. 8,76,242 as on July 4, 2011, whereas in the present proceedings, the petitioner has claimed that he is entitled to an amount of Rs. 11,92,964 as on March 31, 2011. Thus, it is submitted that there is clear inconsistency in the claim of the petitioner. She contended that both the proceedings, i.e., summary suit as well as the winding up petition filed by the petitioner against the respondent-company, comprises of the same set of facts, and with a common purpose of recovery of the dues. But, surprisingly, the amount claimed by the petitioner in the proceedings is different. She, therefore, submitted that this proceeding is nothing but an attempt on the part of the petitioner to pressurise the respondent-company for accepting the illegal demand made by the petitioner. The learned advocate for the respondent-company has referred to the averments made in paragraphs Nos. 15 and 16 of the Summary Suit No. 2709 of 2011 filed by the petitioner against the respondent-company. 7. The learned advocate Ms. Vaibhavi Parikh for the respondent-company further referred to the statement produced at page No. 74 of the compilation, and submitted that as per the calculation of the respondent-company, the amount of only Rs. 52,307 is outstanding. She referred to the notice dated April 13, 2011, issued by the petitioner, wherein the petitioner has claimed that an amount of Rs. 11,92,964 is due and payable by the respondent-company as on March 31, 2011. Thereafter, the petitioner preferred Company Petition No. 112 of 2011. However, the said petition was withdrawn by the order of this court passed on August 2, 2011. The petitioner, thereafter, issued another notice on December 10, 2014, i.e., almost after a period of one year, in which the petitioner has claimed that Rs. Thereafter, the petitioner preferred Company Petition No. 112 of 2011. However, the said petition was withdrawn by the order of this court passed on August 2, 2011. The petitioner, thereafter, issued another notice on December 10, 2014, i.e., almost after a period of one year, in which the petitioner has claimed that Rs. 14,05,340 is due and payable by the respondent-company to the petitioner as on March 31, 2012. The respondent-company has, therefore, given a reply on July 18, 2012 and denied the averments made in the notice issued by the petitioner. 8. She further contended that the petitioner has suppressed the material fact of filing of Summary Suit No. 2709 of 2009 filed by the petitioner against the respondent-company by not producing a copy of the plaint. The respondent-company, has therefore, produced a copy of the said proceedings along with its reply affidavit. She, therefore, contended that in view of the suppression of the aforesaid aspect by the petitioner, this court may not entertain this petition only on this ground. She further contended that the respondent-company has shown its willingness to pay the outstanding amount due to the petitioner, and even today also, the respondent-company is ready and willing to deposit the outstanding principal amount of Rs. 52,307 before this court. 9. The learned advocate Ms. Vaibhavi Parikh for the respondent-company has placed reliance on the order dated October 9, 2000, passed by this court in Company Petition No. 197 of 2000. This court observed in paragraph No. 4 as under: "4. Mr. Mishra has further argued that his claim is not denied by the respondent-company and the only ground which is pleaded is ground of hardship regarding non-payment of his dues are concerned. However, as stated earlier, the claim of the present petitioner is not required to be entertained in this petition on the merits and before coming to this court the petitioner has already approached the civil court. He should proceed further with the alternative remedy which he has already availed of. The petitioner has not filed memo of the plaint, notice of motion nor the order passed by the Bombay High Court along with this petition or even subsequently. Under these circumstances, while rejecting this petition, I direct the petitioner to pay costs of Rs. 5,000 to the respondent-company. Notice is discharged with costs quantified at Rs. 5,000." 10. The petitioner has not filed memo of the plaint, notice of motion nor the order passed by the Bombay High Court along with this petition or even subsequently. Under these circumstances, while rejecting this petition, I direct the petitioner to pay costs of Rs. 5,000 to the respondent-company. Notice is discharged with costs quantified at Rs. 5,000." 10. The learned advocate for the respondent-company further submitted that the aforesaid order passed by this court was challenged before the honourable Division Bench by filing O.J. Appeal No. 27 of 2000 and the honourable Division Bench by an order dated November 27, 2000, dismissed the said appeal, wherein this court observed as under: "Winding up process, admittedly, is not to be resorted at the first instance. It is a remedy which can be employed by the creditor as a last resort. It is not to be utilised as a pressurizing tactic to obtain payment of dues. This court in Tata Iron and Steel Co. v. Micro Forge (India) Ltd., [2000] 2 GLR 1594 : [2001] 104 Comp Cas 533 (Guj), has highlighted the general principles in this regard, whereby, it has been elaborately, stated as to what are the factors which should be borne in mind before passing an order for winding up exercising powers under sections 433 and 434 of the Companies Act, 1956. The present case is, squarely, covered by the observations made by this court in the aforesaid case of Tata Iron and Steel Co. v. Micro Forge (India) Ltd., [2000] 2 GLR 1594 : [2001] 104 Comp Cas 533 (Guj). There are as many as 24 grounds and aspects which must reflect on the mental radar before passing an order even for issuance of the notice. Apart from the fact that the petitioning-company, the appellant herein has already availed of the alternative remedy for recovery of the dues, though may not operate as a ban and bar is considered by the learned company judge, and has also found that mere inability to pay the debts of one of the creditors as contemplated by clause (3) of section 433, ipso facto would not lead to an inference of the substratum being at the bottom of the company. In the circumstances, we are at a great loss to concur with and accept the submissions raised by the learned advocate Mr. Mishra. In the circumstances, we are at a great loss to concur with and accept the submissions raised by the learned advocate Mr. Mishra. Therefore, the only fate this O.J. appeal deserves is rejection at the outset. Accordingly, it is rejected." 11. The learned advocate for the respondent-company has thereafter placed reliance upon the order dated October 8, 2001, passed by this court in Company Petition No. 133 of 2001. She submitted that this court has dismissed the winding up petition when the application for recovery of the amount due from the respondent-company was pending before the Debts Recovery Tribunal. 12. Thus, by placing reliance upon the aforesaid orders passed by this court, the learned advocate for the respondent-company submitted that, in the present case also, civil proceedings are initiated by the petitioner by filing a summary suit against the respondent-company prior to the filing of the present petition, and therefore, this petition is not maintainable as held by this court in the aforesaid orders. 13. The learned advocate Ms. Vaibhavi Parikh for the respondent-company thereafter submitted that one Manoj Manikal Mehta filed Company Petition No. 181 of 2011 (Manoj Maneklal Mehta v. Deviyani Tex-Chem P. Ltd. (No. 1), [2015] 189 Comp Cas 185 (Guj)), against the respondent-company. The facts of the said petition are almost similar to the facts of this case. The learned advocate who has filed this petition had filed the said petition for the said Manoj Maniklal Mehta. Therein, similar type of averments were made. There also, a civil suit was filed by the said petitioner. The said fact was suppressed, and a copy of the plaint was not annexed with the petition. In the said case also, the respondent-company had made payment of major portion of the principal amount, therefore, after considering the overall facts and circumstances of the said case, this court by an order dated May 2, 2014, dismissed the said company petition. The said petitioner, thereafter, preferred O.J. Appeal No. 37 of 2014. However, the honourable Division Bench by an order dated January 29, 2015 (Manoj Maneklal Mehta v. Deviyani Tex-Chem P. Ltd. (No. 2), [2015] 189 Comp Cas 192 (Guj)), dismissed the said appeal. 14. The learned advocate for the respondent-company, therefore, urged that when the facts of the present case are almost similar, this court may also dismiss the present petition. 15. The learned advocate Mr. 14. The learned advocate for the respondent-company, therefore, urged that when the facts of the present case are almost similar, this court may also dismiss the present petition. 15. The learned advocate Mr. Navin Pahwa appearing for the petitioner has submitted in the rejoinder that there is no delay in filing the present petition as alleged and argued by the learned advocate for the respondent-company. The learned advocate once again submitted that the respondent-company has shown in the balance-sheet for the year 2008-09 Rs. 7,23,408 as unsecured loans, which is to be paid to the petitioner as on March 31, 2009. Thus, the said dues are admitted in the balance-sheet. Therefore, when the debt is accepted, it can be said that the respondent-company has acknowledged its debt. The learned advocate for the petitioner has placed reliance upon the order dated December 23, 2011, rendered by the High Court of Delhi in the case of CIT v. Shri Vardhman Overseas Ltd., [2012] 343 ITR 408 (Delhi), in I.T.A. No. 774 of 2009, more particularly has relied upon the observation made by the said High Court in paragraph No. 17 of the order (page 421): "In the case before us, as rightly pointed out by the Tribunal, the assessee has not transferred the said amount from the creditors' account to its profit and loss account. The liability was shown in the balance-sheet as on March 31, 2002. The assessee being a limited company, this amounted to acknowledging the debts in favour of the creditors. Section 18 of the Limitation Act, 1963, provides for effect of acknowledgment in writing. It says where before the expiration of the prescribed period for a suit in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall commence from the time when the acknowledgment was so signed. In an early case, in England, in Jones v. Bellgrove Properties Ltd. [1949] 2 KB 700, it was held that a statement in a balance-sheet of a company presented to a creditor-shareholder of the company and duly signed by the directors constitutes an acknowledgment of the debt. In an early case, in England, in Jones v. Bellgrove Properties Ltd. [1949] 2 KB 700, it was held that a statement in a balance-sheet of a company presented to a creditor-shareholder of the company and duly signed by the directors constitutes an acknowledgment of the debt. In Mahabir Cold Storage v. CIT, [1991] 188 ITR 91 (SC), the Supreme Court held (page 97): 'The entries in the books of account of the appellant would amount to an acknowledgment of the liability to Messrs Prayagchand Hanumanmal within the meaning of section 18 of the Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt.' In several judgments of this court, this legal position has been accepted. In Daya Chand Uttam Prakash Jain v. Santosh Devi Sharma, [1997] 67 DLT 13, S.N. Kapoor J. applied the principle in a case where the primary question was whether a suit under Order 37 of the Code of Civil Procedure could be filed on the basis of an acknowledgment. In Larsen and Toubro Ltd. v. Commercial Electric Works, [1997] 67 DLT 387 a single judge of this court observed that it is well-settled that a balance-sheet of a company, where the defendants had shown a particular amount as due to the plaintiff, would constitute an acknowledgment within the meaning of section 18 of the Limitation Act. In Rishi Pal Gupta v. S.J. Knitting and Finishing Mills P. Ltd., [1998] 73 DLT 593, the same view was taken. The last two decisions were cited by Geeta Mittal J. in S.C. Gupta v. Allied Beverages Co. P. Ltd. (decided on April 30, 2007) and it was held that the acknowledgment made by a company in its balance-sheet has the effect of extending the period of limitation for the purposes of section 18 of the Limitation Act. In Ambica Mills Ltd. v. CIT, [1964] 54 ITR 167 (Guj), it was further held that a debt shown in a balance-sheet of a company amounts to an acknowledgment for the purpose of section 19 of the Limitation Act and in order to be so, the balance-sheet in which such acknowledgment is made need not be addressed to the creditors. In Ambica Mills Ltd. v. CIT, [1964] 54 ITR 167 (Guj), it was further held that a debt shown in a balance-sheet of a company amounts to an acknowledgment for the purpose of section 19 of the Limitation Act and in order to be so, the balance-sheet in which such acknowledgment is made need not be addressed to the creditors. In the light of these authorities, it must be held that, in the present case, the disclosure by the assessee-company in its balance-sheet as on March 31, 2002, of the accounts of the sundry creditors amounts to an acknowledgment of the debts in their favour for the purposes of section 18 of the Limitation Act. The assessee's liability to the creditors, thus, subsisted and did not cease nor was it remitted by the creditors. The liability was enforceable in a court of law." 16. The learned advocate Mr. Navin Pahwa for the petitioner thereafter placed reliance upon the decision rendered by the honourable Supreme Court in the case of Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. reported in [2011] 5 SCC 532 : [2012] 173 Comp Cas 184 (SC), more particularly on paragraphs Nos. 36 to 38 and 42, which read as under (pages 200 and 202 of 173 Comp Cas): "The well recognised examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide: Black's Law Dictionary). Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to sub-ordinate rights in personam arising from rights in rem have always been considered to be arbitrable. . . The distinction between disputes which are capable of being decided by arbitration, and those which are not, is brought out in three decisions of this court. In Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. [1999] 97 Comp Cas 683 (SC) : [1999] 5 SCC 688, 689-90, paragraphs 4 and 5, this court held (page 685 of 97 Comp Cas): 'Sub-section (1) of section 8 provides that where the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide. The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a company is contained under the Companies Act and is conferred on the court. An arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company. The matter which is pending before the High Court in which the application was filed by the petitioner herein was relating to winding up of the company. That could obviously not be referred to the arbitration and, therefore, the High Court, in our opinion was right in rejecting the application'." 17. The learned advocate Mr. Navin Pahwa for the petitioner then placed reliance upon the decision rendered by this court in the case of Oswal Machinery Ltd. v. Pipavav Shipyard Ltd. reported in [2012] 173 Comp Cas 211 (Guj), more particularly paragraphs Nos. 19 and 20, which read as under (pages 230 to 232): "Now, coming to the objections raised by the respondent against the maintainability of the petition. So far as the respondent's objections against maintainability of the petition and the contention that the petitioner-company has already filed a suit and that therefore the petition should not be entertained and that since the contract/LOI provides for arbitration, the petition is not maintainable are concerned, learned counsel for the petitioner submitted that the suit has been filed for recovery of the dues and mainly to ensure that the claim of the petitioner may not become time barred and that therefore the petition under sections 433 and 434 cannot be dismissed on the said ground. He relied on the decision in the case of Central Bank of India v. Sukhani Mining and Engineering Industries P. Ltd. [1977] 47 Comp Cas 1 (Patna) and also on the decision of the Andhra Pradesh High Court in the case of Fibex Inc. v. A.B.K. Publications Ltd. [1999] 97 Comp Cas 947 and the decision by the Delhi High Court in the case of V.K. Jain v. Richa Laboratories P. Ltd. [1993] 78 Comp Cas 283. v. A.B.K. Publications Ltd. [1999] 97 Comp Cas 947 and the decision by the Delhi High Court in the case of V.K. Jain v. Richa Laboratories P. Ltd. [1993] 78 Comp Cas 283. On this count it is necessary to note that the remedy provided under sections 433 and 434 of the Act is a special statutory remedy which is made available to the creditors of a company besides the ordinary civil suit remedy for enforcing recovery of dues and payable amounts would not be eclipsed by the action of filing a suit for recovery of dues or for enforcing recovery. Actually it is a settled position that remedy under sections 433 and 434 of the Act is not available and cannot be permitted to be used for enforcing recovery of disputed debt. The petition is not preferred for recovery of the dues. The petitioner has not claimed or prayed for a direction or declaration or order or decree against the respondent for payment of its claim amount. The relief and order prayed for are for admission of the petition and order of winding up. Therefore the submission and presentation of a suit in the civil court by the petitioner for recovery of debt would not act as a bar against the present petition. Likewise, the arbitration clause in the LOI also would not act as a restriction or obstacle or prohibition in maintaining a winding up petition. Accordingly, the respondent-company's contention resisting the petition on the ground that the letter of intent/contract contains 'arbitration clause' and that the petitioner has already instituted a civil suit for enforcing recovery of the dues, would not help the respondent in opposing the petition on the said ground. In this context reference needs to be made to a recent decision by the apex court in the case between Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. [2011] 5 SCC 532 : [2012] 173 Comp Cas 184, the apex court has observed that (page 200 of 173 Comp Cas): 'Adjudication of certain categories of proceedings are reserved by the Legislature exclusively for public fora as a matter of public policy. v. SBI Home Finance Ltd. [2011] 5 SCC 532 : [2012] 173 Comp Cas 184, the apex court has observed that (page 200 of 173 Comp Cas): 'Adjudication of certain categories of proceedings are reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by a public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora.' In the said decision the apex court further observed that (page 201 of 173 Comp Cas): '... all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to sub-ordinate rights in personam arising from rights in rem have always been considered to be arbitrable.' Having observed thus, the apex court also illustratively mentioned non-arbitrable disputes which, include criminal offence, matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody, etc., guardianship matters, testamentary matters and insolvency and winding up matters. The apex court has also observed that (page 200 of 173 Comp Cas): '... the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject-matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property.' Once, it is established that one or more eventuality contemplated under section 433 of the Act exists then the right to maintain a winding up petition and to request for an order of admission arises and accrues to the creditors, unless it is shown or established that the debt in question is disputed bona fide and there are genuine and substantive grounds for disputing the debt. In the present case, the foregoing discussion demonstrates that the petitioner has made out a case that the eventuality contemplated under section 433(e) and/or under section 433(f) read with section 434(1)(a) exists and the dispute sought to be raised by the respondent is an afterthought and lacks bona fides. In this view of the matter this court is not convinced and inclined to reject and dismiss the petition at threshold on the ground that civil remedy and/or remedy of arbitration is available or that the claim is disputed." 18. Thus, after placing reliance upon the aforesaid decision, the learned advocate Mr. Navin Pahwa for the petitioner has mainly contended that there is no delay in filing the present petition, and though the summary suit is filed by the petitioner before the High Court of Bombay, the present petition is maintainable, as the same is filed for the purpose of winding up of the respondent-company on the ground that respondent is unable to pay its debts, and thus, these proceedings are different, and therefore, this petition is maintainable. 19. Heard the learned advocates for the parties, and considered the submissions and the documents produced on record, and the decisions relied upon by the learned advocates for the parties. 20. From the record, it emerges that the respondent-company sought financial assistance from the petitioner in the year 1996-97. The petitioner, therefore, had advanced a sum of Rs. 3,40,000 on the condition that the respondent-company has to repay the said amount with interest. 21. However, there is nothing on record to suggest that there was an agreement between the parties that the respondent-company would pay interest at the rate of 18 per cent per annum. The respondent-company, thereafter, paid interest at different rates to the petitioner from time to time. 22. In the year 2008, the respondent had paid a sum of Rs. 2,28,000 to the petitioner, and from the documents produced on record, it is further clear that Rs. 52,307 is outstanding, for which, the respondent-company has shown willingness to pay the said amount to the petitioner. 23. The dispute is raised by the respondent-company with regard to substantial amount claimed by the petitioner. The petitioner has filed Summary Suit No. 2709 of 2011 before the High Court of Bombay against the respondent for recovery of an amount of Rs. 23. The dispute is raised by the respondent-company with regard to substantial amount claimed by the petitioner. The petitioner has filed Summary Suit No. 2709 of 2011 before the High Court of Bombay against the respondent for recovery of an amount of Rs. 8,76,242 together with interest at the rate of 6 per cent per annum. 24. Thus, in view of the aforesaid broad facts of the present case, the submissions of the learned advocates for the parties are required to be considered by this court. The respondent-company has specifically raised the dispute that there was no agreement with regard to payment of interest at the rate of 18 per cent per annum. No document is produced on record by the petitioner in support of the contention that respondent was required to pay interest at the rate of 18 per cent per annum. The respondent has paid interest at different rates from time to time to the petitioner, and lastly, the amount of Rs. 2,28,000 was paid in the year 2009. The respondent-company has also contended that in Summary Suit No. 2709 of 2011 filed by the petitioner against the respondent-company before the High Court of Bombay, the petitioner has claimed Rs. 8,76,242 as on July 4, 2011, whereas in the present proceedings, the petitioner has claimed that he is entitled to an amount of Rs. 11,92,964 as on March 31, 2011. Thus, there is a clear inconsistency in the claim of the petitioner. For the same set of facts, the civil proceedings are pending before the competent civil court, and therefore, when the dispute is raised by the respondent-company with regard to substantial part of the claim of the petitioner, I am of opinion that the respondent has raised a reasonable and bona fide dispute with regard to substantial amount of claim made by the petitioner, and therefore, this petition is not required to be entertained. 25. Thus, when I am of the opinion that the dispute raised by the respondent-company is a bona fide and reasonable dispute, I am not deciding the contentions of the learned advocates for the parties that when a civil suit is filed by the petitioner is pending against the respondent-company for recovery of the dues, whether a winding up petition is maintainable or not, and the issue with regard to the limitation raised by the learned advocate for the respondent-company. The respondent-company has also shown willingness to deposit the undisputed amount of Rs. 52,307 before this court with a view to show its bona fides. 26. In a similar type of petition filed by another petitioner against the respondent-company by the same advocate representing the present petitioner, this court passed an order on May 2, 2014 (Manoj Maneklal Mehta v. Deviyani Tex-Chem P. Ltd. (No. 1) [2015] 189 Comp Cas 185 (Guj)), by which the said petition was dismissed. In the opinion of this court, the facts of the present case are almost similar to the said case decided by this court. In the present case also, the petitioner has not placed on record a copy of the plaint filed by the petitioner against the respondent before the High Court of Bombay. The respondent-company has produced a copy of the plaint along with the affidavit. In the present case, a sizeable principal amount was paid by the respondent-company to the petitioner before filing of the winding up petition, and the dispute is with regard to rate of interest, and only a part of the principal amount. This court in the said order observed as under (pages 189 and 190 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 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. 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." 27. In the case of Tata Iron and Steel Co. v. Micro Forge (India) Ltd., [2000] 2 GLR 1594 : [2001] 104 Comp Cas 533 (Guj), the Division Bench of this court held that winding up is a remedy of last resort and not to be utilised as a pressurizing tactic to obtain payment of dues and the court laid down general principles in this regard. In the said case the court found that the company was financially sound and there were disputed aspects about is liability to pay to the petitioner and therefore dismissed the petition. Paragraph No. 29 of the said decision reads as under (page 548 of 104 Comp Cas): "In the present case, there is a bona fide dispute of debt and also substantial dispute of counter-claim. The principles, which we have enunciated hereinabove, are extensively, explored in a catena of judicial pronouncements. For short, we cannot resist the temptation of referring the following decided cases: (1) Madhusudan Gordhandas and Co. The principles, which we have enunciated hereinabove, are extensively, explored in a catena of judicial pronouncements. For short, we cannot resist the temptation of referring the following decided cases: (1) Madhusudan Gordhandas and Co. v. Madhu Wollen Industries P. Ltd., [1972] 42 Comp Case 125 (SC), wherein it is held that one act of dishonesty on the part of the petitioner is sufficient for rejection of petition. (2) Harinagar Sugar Mills Co. Ltd. v. M.W. Pradhan, [1966] 36 Comp Cas 426 (SC) : AIR 1966 SC 1707 , wherein it has been observed, relying on Palmer's Company Precedents that a winding up order is not a normal alternative. (3) Pradeshiya Industrial and Investment Corporation of Uttar Pradesh v. North India Petro Chemical Ltd., [1994] 79 Comp Cas 835 (SC) : [1994] 3 SCC 348, wherein it is held that mere inability to pay debt without any other evidence itself is not always sufficient to exercise discretion in favour of the petitioner. (4) American Express Bank Ltd. v. Core Health Care Ltd., [1999] 96 Comp Cas 841 (Guj), wherein, this court (Coram: R. Balia, J.) has lucidly propounded the material principles and important parameters to be considered by the court before adjudicating and exercising discretionary powers under section 433 of the Companies Act, 1956. (5) Ashok Fashions Ltd. v. Meghdoot Acid and Chemicals, [1998] 91 Comp Cas 655 (Guj). Dealing with the procedural part also, as required under the Companies (Court) Rules, 1959, pertaining to winding up has laid down certain principles. What is the requirement for being stated in the petition under rule 95 in the case of a creditor's petition, the prescribed requirements under Forms Nos. 45, 46 and 47 are dealt with. It is held that if the petition does not disclose the financial status of the respondent-company, which is mandatory in the case of a petition by the creditor, and, therefore, the petition came to be dismissed on that ground." 28. Now, considering the facts of the case on hand, it is clear that the debt is not admitted except Rs. 52,307. The dispute is raised by the respondent-company with regard to the rate of interest. The respondent-company has paid interest at different rates from time to time to the petitioner, which is accepted by the petitioner without any objection. Amount of Rs. 2,28,000 has also been towards principal. 52,307. The dispute is raised by the respondent-company with regard to the rate of interest. The respondent-company has paid interest at different rates from time to time to the petitioner, which is accepted by the petitioner without any objection. Amount of Rs. 2,28,000 has also been towards principal. The civil suit is also pending for recovery of the amount filed by the petitioner against the respondent even before filing of the present petition, and therefore, this petition for winding up of the respondent-company is not required to be admitted and entertained. However, it is clarified that at present this court is not expressing any opinion on merits with the regard to the dispute as to entitlement or claim by the petitioner, as the same is required to be adjudicated upon by a competent civil court, more particularly when the suit filed by the petitioner is pending. However, as observed hereinabove, there is a bona fide dispute raised by the respondent. Therefore, the case would not fall under section 433(e) of the Companies Act, 1956. 29. The respondent-company has admitted its liability to the tune of Rs. 52,307. Therefore, it is open for the respondent to make payment of the said amount to the petitioner if he is agreeable to accept the same within a period of four weeks without prejudice to the rights and contentions of the parties in the pending sale proceeding before the High Court of Bombay. For the reasons stated above, this company petition fails, and is accordingly dismissed without expressing any opinion on merits with regard to the claims made by any of the parties. Notice is discharged.