JUDGMENT : 1. The petitioner, M/s. Uttam Industrial Engineering Ltd., has filed the present petition for winding up of M/s. Shree Basaveshwar Sugars Ltd., under Sections 433 (e) and (f), 434 (1) (a) and 439 (1) (b) of the Companies Act, 1956, read with Rule 9 of the Company Court Rules, 1956. 2. Briefly the facts of the case are that both the petitioner-Company and the respondent-Company (henceforth to be referred to as merely "the Petitioner" and "the respondent", for short) are registered under the Companies Act, 1956. The petitioner is engaged in the business of designing, procuring, manufacturing, supplying/selling the plant and machinery, and equipments required for the construction of a sugar plant. According to the petitioner, on 05.05.2011, the petitioner and the respondent entered into an agreement for supply of sugar mill house machinery and equipments required by the respondent for their sugar plant situated in Karjol village, Bijapur District. According to the said agreement, the petitioner was required to supply machinery, and equipment worth Rs. 25.70 Crores. Further, according to the petitioner, it has supplied the machinery and equipment worth Rs.12,43,01,035/-. However, according to the respondent, the petitioner has supplied machinery and equipment worth merely Rs.11.20 Crores. 3. Further, during the course of supply of machinery, and equipment, the respondent defaulted in paying the amount due to the petitioner. According to the petitioner, on 03.05.2012, the officials of the petitioner personally visited the Corporate office of the respondent with regard to the non-payment of the due amount. The respondent assured the petitioner that it will make the payment of the amount due. However, despite the said assurance, the respondent failed to do so. Therefore, by e-mail dated 19.05.2012, the petitioner reminded the respondent about its commitment. The respondent assured the petitioner that by next week they will release Rs. 3 Crores to the petitioner. Similarly, on 24.07.2012, the respondent again assured the petitioner of its intention to pay the amount due. 4. The petitioner further claims that from 06.09.2012, till 13.09.2012, it kept on sending e-mails to the respondent informing and requesting them about the outstanding dues. According to the petitioner, by e-mail dated 21.09.2012, the respondent informed the petitioner that the respondent "has taken the decision to postpone the project to the next season i.e., November, 2013 due to some internal reasons". According to the petitioner, by e-mail dated 21.09.2012, the respondent informed the petitioner that the respondent "has taken the decision to postpone the project to the next season i.e., November, 2013 due to some internal reasons". It further assured the petitioner that "out of the total outstanding dues of Rs.6.05 Crores, it will release Rs.1.10 Crores presently, and the balance amount would be released only after the month of March, 2013". It further undertook to pay an interest at the rate of 12% per annum, on the payment of the balance amount. But again, despite the assurance given by the respondent, it failed to make the necessary payment to the petitioner. 5. Therefore, on 27.02.2013, the petitioner sent a legal notice, and demanded the payment of Rs.15 Crores along with an interest at the rate of 18% per annum, from the respondent. On 26.03.2013, the respondent informed the petitioner that after reconciling the account, the respondent is liable to pay only Rs.11.80 Lacs to the petitioner. Since the petitioner was dissatisfied with the reply received from the respondent, on 29.04.2013, it sent a legal notice under Section 434 of the Companies Act, whereby it called upon the respondent to pay a sum of Rs.9,39,35,720/- along with an interest at the rate of 18% per annum. On 17.05.2013, the respondent replied to the same; it denied the claim made by the petitioner. Moreover, the respondent disputed the amount owed by them to the petitioner. Hence, this petition for winding up before this Court. 6. Smt. Sunita, the learned Counsel for the petitioner, has vehemently argued that firstly, by email dated 21.09.2012, the respondent has clearly admitted its liability to pay Rs. 6. 5 Crores. Therefore, the respondent cannot wriggle out of its admission. Secondly, merely as an afterthought the respondents are claiming that after "reconciling the accounts" they owe merely Rs. 11.80 Lacs to the petitioner. Thirdly, since it is an afterthought, the said stand is clearly unacceptable to the petitioner. For according to the petitioner, the respondent owes a debt of Rs. 6.5 Crores. Since the respondent has failed to pay the said amount, the respondent deserve to be wound up by this Court. 7. On the other hand, Mr. 11.80 Lacs to the petitioner. Thirdly, since it is an afterthought, the said stand is clearly unacceptable to the petitioner. For according to the petitioner, the respondent owes a debt of Rs. 6.5 Crores. Since the respondent has failed to pay the said amount, the respondent deserve to be wound up by this Court. 7. On the other hand, Mr. Ganapati Hegde, the learned Counsel of the respondent, has pleaded that firstly, the petitioner has filed the winding up petition in order to pressurize the respondent to cough up the amount. However, there are bona fide disputes which exist between the petitioner and the respondent. Secondly, the contract entered between the parties was for Rs. 25.70 Crores, whereas the petitioner had supplied machinery and equipments worth only Rs. 11.20 Crores. Therefore, the petitioner has failed to fulfill its obligations under the contract dated 05.05.2011. Since time was of essence, since there was an inordinate delay in supplying the machinery and equipments, since the project was getting unnecessarily delayed due to the lapses committed by the petitioner, by letter dated 26.12.2012, the respondent cancelled the entire order. Thus, presently no contract exists between the parties. Thirdly, by e-mail dated 10.01.2013, the respondent has clearly informed the petitioner that after reconciling the accounts, the respondent is required to pay merely Rs.11.80 Lacs to the petitioner. Although the respondent has mentioned this fact in its objections filed before this Court, the petitioner has disputed the stand taken by the respondent. Since there is a bona fide dispute about the amount due from the respondent to the petitioner, since the rights and liabilities of the parties still need to be decided under the contract, since there are complicated and disputed question of facts, the winding up proceeding in not the proper remedy. Fourthly, although the petitioner keeps on harping that by e-mail dated 21.09.2012, the respondent has admitted a debt of Rs.6.05 Crores, but the petitioner has been changing its stand with regard to the amount due from the respondent. For, according to the notice dated 27.02.2013, the respondent owed Rs. 15 Crores to the petitioner. Yet in its notice dated 29.04.2013, under Section 434 of the Companies Act, the petitioner has claimed that the respondent owes them Rs.9,39,35,720/-. But in the petition, they claim that the respondent owes them Rs.6,12,66,074/-. For, according to the notice dated 27.02.2013, the respondent owed Rs. 15 Crores to the petitioner. Yet in its notice dated 29.04.2013, under Section 434 of the Companies Act, the petitioner has claimed that the respondent owes them Rs.9,39,35,720/-. But in the petition, they claim that the respondent owes them Rs.6,12,66,074/-. Thus, the petitioner is absolutely unsure of the exact amount owed by the respondent to the petitioner. Fifthly, according to the contract dated 05.05.2011, in case a dispute erupts between the parties, the parties shall refer the dispute to an arbitrator. Already an Arbitration Tribunal has been constituted and is seized of the matter. Furthermore, despite the pendency of the dispute before the Arbitral Tribunal, the petitioner has filed an application for temporary injunction against the respondent before the District Judge, Ghaziabad, namely Misc. Case No. 447/2015; it has also filed another miscellaneous case, namely Misc. Case No. 295/2016, under Section 14 of the Arbitration & Conciliation Act, 1996, before the same court. Furthermore, the respondent has also filed a petition under Section 14 of the Arbitration & Conciliation Act, 1996, namely O.P. No. 76/2017, before the Hon'ble Madras High Court, for terminating the Arbitral Tribunal appointed under the contract and for appointing a substitute Arbitrator, preferably, a retired Judge of the Madras High Court. By order dated 20.02.2017, the Hon'ble Madras High Court has issued notice to the petitioner. Thus, the entire dispute continues to be pending before the Arbitral Tribunal appointed under the contract. Since the petitioner and the respondent are already before the Arbitrary Tribunal, since the case raises complicated and disputed questions of fact, the winding up petition, which is a summary proceeding, should not be continued by this Court. Thus, the petition deserves to be dismissed by this court. 8. Heard the learned counsel for the parties. 9. In the case of IBA Health (I) (P) Ltd. v. Info-Drive Systems Sdn. Bhd., [(2010) 10 SCC 553], the Hon'ble Supreme Court has observed as under: 20. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt. 21. In this connection, reference may be made to the judgment of this Court in Amalgamated Commercial Traders (P) Ltd. v. A.C.K. Krishnaswami in which this Court held that: (Comp Cas p. 463) "It is well settled that 'a winding-up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding-up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuse of the process of the court....' " 22. The abovementioned decision was later followed by this Court in Madhusudan Gordhandas and Co. v. Madhu Woollen Industries (P) Ltd. The principles laid down in the abovementioned judgment have again been reiterated by this Court in Mediquip Systems (P) Ltd. v. Proxima Medical System Gmb wherein this Court held that the defence raised by the appellant Company was a substantial one and not mere moonshine and had to be finally adjudicated upon on the merits before the appropriate forum. The abovementioned judgments were later followed by this Court in Vijay Industries v. NATL Technologies Ltd. 23. The principles laid down in the abovementioned cases indicate that if the debt is bona fide disputed, there cannot be "neglect to pay" within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated and non-payment of the amount of such a bona fide disputed debt cannot be termed as "neglect to pay" so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. The Hon'ble Apex Court further opined as under : 25. An examination of the company's solvency may be a useful aid in determining whether the refusal to pay debt is a result of a bona fide dispute as to the liability or whether it reflects an inability to pay. Of course, if there is no dispute as to the company's liability, it is difficult to hold that the company should be able to pay the debt merely by proving that it is able to pay the debts. If the debt is an undisputedly owing, then it should be paid. If the company refuses to pay, without good reason, it should not be able to avoid the statutory demand by proving, at the statutory demand stage, that it is solvent. In other words, commercial solvency can be seen as relevant as to whether there was a dispute as to the debt, not as a ground in itself, that means it cannot be characterised as a standalone ground. The Hon'ble Supreme Court further held as under : 31. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. "Bona fide dispute" implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that the company's refusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a civil court. A party to the dispute should not be allowed to use the threat of winding-up petition as a means of enforcing the company to pay a bona fide disputed debt. A Company Court cannot be reduced as a debt collecting agency or as a means of bringing improper pressure on the company to pay a bona fide disputed debt. Of late, we have seen several instances where the jurisdiction of the Company Court is being abused by filing winding-up petitions to pressurise the companies to pay the debts which are substantially disputed and the courts are very casual in issuing notices and ordering publication in the newspapers which may attract adverse publicity. Remember, an action may lie in appropriate court in respect of the injury to reputation caused by maliciously and unreasonably commencing liquidation proceedings against a company and later dismissed when a proper defence is made out on substantial grounds. A creditor's winding-up petition implies insolvency and is likely to damage the company's creditworthiness or its financial standing with its creditors or customers and even among the public. 34. A creditor's winding-up petition, in certain situations, implies insolvency or financial position with other creditors, banking institutions, customers and so on. Publication in the newspaper of the filing of winding-up petition may damage the creditworthiness or financial standing of the company and which may also have other economic and social ramifications. Competitors will be all the more happy and the sale of its products may go down in the market and it may also trigger a series of cross-defaults, and may further push the company into a state of acute insolvency much more than what it was when the petition was filed. The Company Court, at times, has not only to look into the interest of the creditors, but also the interests of the public at large. The Company Court, at times, has not only to look into the interest of the creditors, but also the interests of the public at large. A Company Court, therefore, should act with circumspection, care and caution and examine as to whether an attempt is made to pressurise the company to pay a debt which is substantially disputed. A Company Court, therefore, should be guarded from such vexatious abuse of the process and cannot function as a debt collecting agency and should not permit a party to unreasonably set the law in motion, especially when the aggrieved party has a remedy elsewhere. Therefore, the principles enunciated above by the Hon'ble Supreme Court would have to be kept in mind while deciding the present winding up petition. 10. Admittedly, according to the contract dated 05.05.2011, the petitioner is supposed to have supplied machinery and equipments worth Rs. 25.70 Crores. According to the petitioner, it had supplied equipment and machineries worth Rs. 12,43,01.035/- Crores. But according to the respondent, the petitioner had supplied equipment and machineries worth only Rs. 11.20 Crores. Thus, there is a dispute as to the exact value of the machinery and equipment supplied by the petitioner to the respondent. 11. While on the one hand, the petitioner complains that the respondent had failed to pay the due amount as and when the amount became due, the respondent stresses the fact that the petitioner had failed to deliver the equipment and machinery as and when required by the respondent. The respondent further claim that due to the laxity on the part of the petitioner, they were forced to demolish certain constructions, and to order the equipment and machineries from third parties. Therefore, the respondent had no other option but to cancel the contract by letter dated 26.12.2012. Thus, the issue as to which party had breached the contract is a highly disputed question of fact. Moreover, of the two parties, which party is liable for the damage caused, which party is entitled to the damages are again disputed questions of fact. 12. Although it is true that by e-mail dated 21.09.2012, the respondent admitted an outstanding due of Rs.6.05 Crores, but subsequently, according to the respondent, after reconciling the accounts they claim that they need to pay only Rs. 11.80 Lacs to the petitioner. 12. Although it is true that by e-mail dated 21.09.2012, the respondent admitted an outstanding due of Rs.6.05 Crores, but subsequently, according to the respondent, after reconciling the accounts they claim that they need to pay only Rs. 11.80 Lacs to the petitioner. Thus, there is a bona fide dispute with regard to the substantial amount owed to the petitioner. 13. Further, the petitioner has repeatedly changed its position with regard to the actual amount owed by the respondent. On the one hand, in its notice dated 27.02.2013, the petitioner claimed that the respondent owes Rs. 15 Crores along with an interest of 18 % per annum. Yet, on the other hand, in the petition, it claims that as of 31.03.2013, the respondent owes a sum of Rs.6,12,66,074/-. But still further, in its notice dated 29.04.2013, the petitioner claims that as of 31.03.2013, the respondent owed Rs.9,39,35,720/-. Thus, the actual amount owed by the respondent to the petitioner is extremely unclear. 14. According to the respondent, they are required to pay merely an amount of Rs.11.80 Lacs to the petitioner. In order to substantiate this plea, the respondent has filed the statement of account (Annexure-R.3). However, the petitioner has hotly disputed the said statement of account. For example, the petitioner claims that respondent has arbitrarily deducted Access Claim of Rs.11 Lacs, although no reason has been given for deducting the said amount in the reconciliation statement. Moreover, while the respondent has claimed that it is entitled to Rs.1.44 Lacs for Debit Note, but the petitioner has denied this liability. Similarly, while the respondent has claimed Rs.30 Lacs for Technical Support for Erection and Commissioning, the petitioner has again denied the same. Thus, obviously, there are bona fide disputes between the petitioner, and the respondent with regard to different heads of payment and deductions. 15. Admittedly, the contract dated 05.05.2011, contained an arbitration clause. Undoubtedly, both the parties are before an Arbitral Tribunal created under the contract. Already the petitioner has filed an application under Section 9 of the Arbitration & Conciliation Act, before the District Judge, Ghaziabad. Moreover, the petitioner has also filed an application under Section 14 of the said Act before the District Judge, Ghaziabad. Meanwhile, the respondent, too, has filed a petition, namely O.P. No. 76/2017, under Section 14 of the said Act before the Hon'ble Madras High Court. Moreover, the petitioner has also filed an application under Section 14 of the said Act before the District Judge, Ghaziabad. Meanwhile, the respondent, too, has filed a petition, namely O.P. No. 76/2017, under Section 14 of the said Act before the Hon'ble Madras High Court. Thus, both the parties have already taken recourse to the arbitration proceedings. Once the petitioner has taken recourse to the remedy provided under the Contract for voicing his interest, the petitioner cannot be permitted to do forum shopping by filing the present company petition. According to the learned counsel for the petitioner, the arbitration proceedings are embroiled in certain difficulties. But, therefore, it seems that the present winding up petition has been filed with the motive of pressurizing the respondent to settle the disputes which have erupted between the parties. Therefore, the filing of the present petition, prima-facie, tantamount to abuse of the process of the Court. 16. In the case of IBA Health (I) (P) Ltd., (supra), the Apex Court has already observed that since a winding up order adversely affects not only the good will of the company, but also the functioning of the said company, therefore, the Company Court should be cautious and careful while passing an order for winding up of the company. Moreover, a winding up petition cannot be used as a clever ploy by a creditor to pressurise the Company to cough up the alleged amount due. Most importantly, in case there is a bona fide dispute with regard to the amount owed and with regard to the rights and liabilities of the parties, then the winding up petition deserves to be dismissed. In such a scenario, the Company Court should relegate the parties to a Civil Court or to arbitration. 17. As discussed above, there are serious disputes between the parties with regard to their rights and liabilities, as mentioned above, the parties have already taken recourse to the arbitration proceedings, therefore, the parties should settle their disputes before the Arbitral Tribunal. The winding up petition is not the right remedy for settling the dispute between the parties. For, a winding up proceeding is a summary proceeding, wherein this court is not expected to hold a mini-trial. 18. Therefore, for the reasons stated above, this winding up petition is devoid of any merit. It is, hereby, dismissed.