JUDGMENT : 1. This is a winding up application at the stage of admission. The petitioning creditor as well as the respondent company are engaged in the sale of software. 2. The case of the petitioner is founded on two heads. One is on account of unpaid price of software sold and delivered by them to the company. The other is on account of money advanced by them to the company and not re-paid by them. 3. The first part of the case is like this. On 1st March, 2012, 7th March, 2012, 11th March, 2013, 14th March, 2013, 25th March, 2013 and 30th March, 2013 they raised invoices on the respondent company, in respect of their purchase orders for Rs. 15,94,00,782/-. Those related to the sale of software of study materials for students of class V to X of schools affiliated to the CBSE Board. From time to time between 31st March, 2012 and 26th March, 2014 the company made payment of a sum of Rs. 10,73,53,520/-, leaving a sum of Rs. 5,20,47,262/- due and payable by them to the petitioning creditor. 4. The second transaction is like this. The petitioning creditor, between 17th September, 2012 and 22nd March, 2013 claims to have advanced a sum of Rs. 6,47,91,950/- to the company against supplies made or to be made by them. On 7th February, 2012 the respondent company supplied goods worth Rs. 1,72,06,800/- and on 28th February, 2013 supplied goods worth Rs. 2,86,95,234 aggregating to Rs. 4,59,02,034/-. Therefore according to the petitioning creditor the company enjoyed a sum of Rs. 1,88,89,916/- as advance. Rs. 5 lakhs were returned by them, leaving an advance of Rs. 1,83,89,916/- , refundable to the petitioning creditor. 5. In the petition the claim of the petitioning creditor was formulated with brevity with no details whatsoever, save and except that after giving credit to the payment received for goods supplied, they would receive from the respondent company a sum of Rs. 5,20,47,262/-. For the products that they bought from the respondent company, the petitioner made an advance payment of Rs. 1,88,89,916/-. No goods were supplied. Rs. 5 lakhs were returned by the company. So the petitioner had a claim of Rs. 1,83,89,916/- against them. In paragraph-7 of the affidavit-in-reply the petitioning creditor says that they placed 3 purchase orders on the company for sale and supply of video conferencing software to them. 6. 1,88,89,916/-. No goods were supplied. Rs. 5 lakhs were returned by the company. So the petitioner had a claim of Rs. 1,83,89,916/- against them. In paragraph-7 of the affidavit-in-reply the petitioning creditor says that they placed 3 purchase orders on the company for sale and supply of video conferencing software to them. 6. They were separate and not part of this proceeding. 7. Therefore, the total claim of the petitioning creditor is Rs. 7,04,37,178/- [Rs. 5,20,47,262 + Rs. 1,83,89,916]. 8. On 18th September, 2015 the petitioning creditor caused a statutory notice to be issued to the company claiming Rs. 5,20,47,262 + 1,83,89,916. Since the respondent had changed their registered office address another notice was sent to them on 14th October, 2015. The company did not reply to these statutory notices. 9. In the pleadings made in the petition and in the affidavit in reply read with the documents annexed thereto it is very difficult to understand the transaction. No details of the claim are provided. The documents annexed like purchase orders, challans and invoices are insufficient and do not prove the transaction. The details are sought to be provided in a chart handed up to this court at the close of hearing of this application. Ms. Lapita Banerjee for the petitioning creditor shows me a ledger entry of her client for the relevant period, 1st April, 2013 to 31st March, 2014 where it has shown dues of Rs.5,20,47,262/-. On 11th June, 2014 the company through a Mr. Ghosh sent to the petitioning creditor an e-mail asking them to send the outstanding invoices. On 16th May, 2013 the company issued a certificate signed by Mr. Ghosh that the petitioning creditor had successfully completed the supply, installation and licensing of multimedia bases e-learning courseware of class V to X under the CBSE Board during the financial year 2012-2013. 10. Learned counsel submits that these pieces of admission are sufficient to fix liability on the company. 11. Mr. Jishnu Chowdhury appearing for the respondent company submitted that Mr. Ghosh that no authority whatsoever to make the admission. In fact, according to him, the admission had been made fraudulently. He showed me a letter of his client written much more than two years after conclusion of the transaction on 21st August, 2015 (pg. 11. Mr. Jishnu Chowdhury appearing for the respondent company submitted that Mr. Ghosh that no authority whatsoever to make the admission. In fact, according to him, the admission had been made fraudulently. He showed me a letter of his client written much more than two years after conclusion of the transaction on 21st August, 2015 (pg. 89 of the affidavit–in-opposition) that the goods supplied by the petitioning creditor were defective and “unacceptable” and that the advance made against them of Rs. 2,73,29,116 and Rs. 38,00,000 less the security of Rs. 47, 80,000 furnished by the petitioning creditor, was recoverable. 12. In the affidavit-in-opposition the respondent company has raised a counter claim. They have said that there was a “strategic partnership agreement” dated 1st March, 2011 between the parties. They supplied goods to the petitioning creditor of the value of Rs. 12,55,94,,296/-. The petitioning creditor made a part payment only a sum of Rs. 6,74,91,950/-, as stated in paragraph-13 of the affidavit-in-opposition. It is said that the respondent company is entitled to Rs. 14,82,54,044/- from them. From the pleadings in the affidavit-in-opposition, this amount of the counterclaim cannot be derived. It was sought to be supported by the company by a chart produced by their learned counsel at the time of hearing of the application, showing that a sum of Rs. 21,57,07,815.79 was sought to be advanced by the company to the petitioning creditor out of which the latter made a part payment of Rs. 6,74,91,950/-. The petitioning creditor is liable to a deduction of Rs. 38,178/- by virtue of a debit note. As a result of this Rs. 14,82,54,044/- is due and payable by them to the company. The details are nowhere pleaded in the affidavit-in-opposition. 13. The pleadings in the affidavit in opposition do not support the statements made in the chart. In all fairness the details introduced in the chart ought to have been incorporated in the affidavit in opposition. Otherwise, it is difficult to justify or accept the chart of the respondent company. 14. Discrepancies are galore in the calculation of the parties in different parts of their pleading and between the pleadings and the charts handed up to the court. 15. It is very remarkable that no calculation details are provided in the petition or affidavit in opposition or affidavit in reply. Not even in the statutory notice. 14. Discrepancies are galore in the calculation of the parties in different parts of their pleading and between the pleadings and the charts handed up to the court. 15. It is very remarkable that no calculation details are provided in the petition or affidavit in opposition or affidavit in reply. Not even in the statutory notice. The respondent company has said that their employee S. Ghosh had no authority to issue the e-mail dated 11th June, 2014 to the petitioning creditor asking them for the invoices. Neither the authority to issue the work completion certificate dated 16th May, 2013. 16. It was also sought to be contended that Ghosh’s signature was forged by the petitioning creditor. Is this a type of case where a court should entertain a petition for winding up? 17. Now, let us have a look at the law on the subject. 18. Usually, the ordinary remedy of a creditor against his debtor to realise a debt is a suit. A suit matures for trial, stage by stage. A written statement is filed by the defendant. Documents are discovered by the parties. Inspection is made of them. Issues are framed. Witnesses are examined. Oral and documentary evidence is received by the court. During this process a whole mass of correspondence may be exchanged between the learned lawyers for the parties. Then arguments. Thereafter, comes the question of pronouncing a decree. The plaintiff has to prove his case on a balance of probabilities. There is no short cut except two. If the defendant has admitted any part of the claim, the court can pronounce a decree to that extent forthwith (see Order 12 Rule 6 of Code of Civil Procedure). Or, if the suit falls within the description of summary suits in Order 37 of the code or Chapter XIIIA of the Original Side Rules. When a plaintiff is asking for a summary judgement, he has to prove before the court his claim, by affidavit evidence and in that process show the court that the defendant has got no defence to his case, on a balance of probabilities. Therefore, there is no occasion for any triable issue to arise. The court proceeds to pass a decree in his favour. Therefore, there is no occasion for any triable issue to arise. The court proceeds to pass a decree in his favour. If the defendant, in the opinion of the court has been able to raise a bona fide and triable defence, the court does not pronounce a decree and gives him leave to defend the suit. Similar is the effect when a judgement on admission application is dismissed by the court. 19. Now, when the petitioner is asking for winding up of the respondent company on the ground that it is unable to pay its debts, the same principles are applicable. He has to prove his case and show that the company has not been able to raise any triable defence. If it appears to the court that prima facie, the respondent company has been able to raise a triable defence in good faith, than a winding up petition is not entertained and the petitioner relegated to trial. In Madhusudan Gordhandas & Co. v. Madhu Wollen Industries Pvt. Ltd. reported in AIR 1971 SC 2600 , the Supreme Court held that if there was a bona fide dispute of which prima facie proof was adduced by the respondent, a winding up application was not entertainable. 20. Mr. Justice Ajit Nath Ray delivering the judgment of the court remarked: “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.” 21. The same ratio was followed by the Court in Mediquip Systems Pvt. Ltd. v. Proxima Medical System Gmbh reported in (2005) 124 Comp Cas 473. A division bench of our court presided over by Justice Ajoy Nath Ray, in SRC Steel (P) Ltd. v. Bharat Industrial Corporation Ltd. reported in 2005 (4) CHN 343 had applied the principles that are applied by the court in dealing with a summary suit, to the consideration whether a winding up application should be entertained. He relied on the case of Mechelec Engineering & Manufacturers v. Basic Equipment Corporation reported in AIR 1977 SC 577 . In that case Mr. Justice Beg following Smt. Kiranmoyee Dassi & Anr. v. Dr. He relied on the case of Mechelec Engineering & Manufacturers v. Basic Equipment Corporation reported in AIR 1977 SC 577 . In that case Mr. Justice Beg following Smt. Kiranmoyee Dassi & Anr. v. Dr. J. Chatterjee reported in 49 CWN 246 enunciated five principles to be followed in considering an application for summary judgement, which are as follows:- (a) If the Defendant satisfies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend. (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend. (c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff’s claim the plaintiff is not entitled to judgment and Defendant is entitled to leave to defend but in such a case the court may into discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security. (d) If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend. (e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgement, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to prove a defence. (f) The case before us certainly does not fall within the class (e) set out above. (f) The case before us certainly does not fall within the class (e) set out above. It is only in that class of case that an imposition of the condition to deposit an amount in court before proceeding further is justifiable.” 22. The petitioner has not been able to concretely show from the pleadings in the winding up application and the annexures thereto and the affidavit-in-reply together with its annexures that a sum of Rs. 5,20,47,262/- + Rs. 1,83,89,916 remained outstanding to them from the respondent in respect of the invoices raised by them during the financial year 2012-2013. In fact I have not found the required documents like the purchase orders, invoices and challans to substantiate the sale transaction as pleaded. Neither is there any tabulation of part payments received in respect of the invoices raised or advances alleged to have been made by the petitioning creditor to the respondent. 23. Neither has the respondent been able to demonstrate how they are entitled to a sum of Rs. 14,82,54,044/-. 24. Their case is much worse. The pleadings and the documents annexed to the affidavit in opposition do not support their case at all. 25. The charts would have been relevant if there was support or base for the data contained therein in the pleadings. There is none, either in the pleadings of the petitioner or the pleadings of the respondent. 26. The transactions between the parties appear to have been cross transactions and quite complex. It appears that payments were made by either side. How much is owing to whom is difficult to ascertain. 27. Hence, this is a fit case which should be tried. 28. This winding up application is accordingly dismissed. 29. The period during which this application was pending in this court from 8th December, 2015 till date will be excluded for the purpose of calculating limitation in the suit. 30. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.