JUDGMENT : Arindam Mukherjee, J. 1. This is an application for winding up of the company by the name Good-Will Tea & Industries Limited (hereinafter referred to as the said company) filed under the provisions of Sections 433, 434 and 439 of the Companies Act, 1956 (hereinafter referred to as the said Act) on account of debt arising out of alleged unpaid price of goods (coal dust) sold and delivered by the petitioner to the said company. The winding up petition was filed on or about November 7, 2016 and directions for filing of affidavits were given on November 28, 2016. 2. The petitioning creditor carries on business as Coal Merchant under the name and style Radharani Enterprise as a sole proprietor thereof. The petitioning creditor says that he had been supplying coal dust to the said company at its Bhandiguri Tea Estate at Jalpaiguri. He alleges that as on March 31, 2015 a sum of Rs. 16,13, 879/- remained outstanding on account of price of coal dust supplied to the said company. At the assurance of the said company to pay the said outstanding sum with interest the petitioning creditor resumed further supplies and the said company also made subsequent payments from time to time. After giving adjustments to all payments received by the petitioning creditor from the said company after March 31, 2015 a principal sum of Rs. 16,26,453.50 p remained due and outstanding as on March 31, 2016. Since the said company did not pay any part and portion of such dues, the petitioning creditor through his advocate issued a statutory notice on July 23, 2016 claiming an aggregate sum of Rs. 16,26,453.50 p./- with interest @ 21%. The petitioning creditor further submits that the said company duly received such statutory notice but neither paid any part or portion thereof nor did it secure to the satisfaction of the petitioning creditor such sum. On the contrary the said company alleged that the petitioning creditor is not entitled to Rs. 16,13,879.50 p said to be due on March 31, 2015 and the company is entitled to realize a sum of Rs. 25,34,708/- on account of over billing and Rs. 8,66,917/- on account of damages by replying to the petitioner’s statutory notice through its advocate’s letter dated August 4, 2016. This resulted in filing of the said winding up application. 3. 16,13,879.50 p said to be due on March 31, 2015 and the company is entitled to realize a sum of Rs. 25,34,708/- on account of over billing and Rs. 8,66,917/- on account of damages by replying to the petitioner’s statutory notice through its advocate’s letter dated August 4, 2016. This resulted in filing of the said winding up application. 3. In reply to the winding up notice the company has raised the following issues to resist the petitioner’s claim:- (i) The supply was of inferior quality for which the said company as suffered damages to the tune of Rs. 8,66,917/-. The company says that having regard to inferior quality of goods being supplied, the consumption of coal dust used in operating the boilers at the factory of the said company increased than its normal consumption resulting in such damages. (ii) The petitioning creditor had charged at a much higher rate than that prevailing in the market for the goods in question during the relevant time. Since the said company had made payment from time to time on the basis of the bills raised by the petitioning creditor at such inflated rate, the company had in effect made excess payment to the petitioning creditor. According to the said company, the petitioning creditor is liable to pay Rs. 25, 34, 708/- on account of excess billing and Rs. 8,66,917/- on account of damages. After adjusting Rs 16, 26, 453/- there from as claimed by the petitioning creditor, the petitioning creditor owe a sum of Rs. 8,98,225/- to the said company. 4. It further appears from the company’s reply to the statutory notice that the said company by a purported letter dated June 20, 2016 sought to dispute the claim of the petitioning creditor by referring to an internal audit said to have been conducted by it. A copy of the said letter dated June 20, 2016 was enclosed with the reply to the statutory notice. 5. It is apparent from the letter dated June 20, 2016 annexed to the petition as also in the company’s affidavit that the same has been addressed to Kailash Agarwal of M/s. Radharani Enterprise and not to Pratik Agarwal, the petitioning creditor. No proof of delivery of such letter has also been produced by the said company. 5. It is apparent from the letter dated June 20, 2016 annexed to the petition as also in the company’s affidavit that the same has been addressed to Kailash Agarwal of M/s. Radharani Enterprise and not to Pratik Agarwal, the petitioning creditor. No proof of delivery of such letter has also been produced by the said company. It appears from the said letter dated June 20, 2016 that in view of “a series of recent events, the directions and executive management of the Company decided to conduct an audit to investigate and compare the prices of inputs charged to the company compared to market rate.” The said exercise was carried for the financial year 2016. After comparing the market rate of Nangal coal (of comparable or superior quality) and the rate charged by the petitioner, the said company had come to a conclusion that the petitioner had over invoiced the said company to the tune of Rs. 16,67,791/- in the financial year 2016. No copy of internal audit report said to have been conducted by the said company has been disclosed. Only few pages of unauthenticated comparative chart of price has been disclosed. That apart, the exercise is said to have been carried for the financial year 2016 which commences from 1st April, 2016 whereas the supplies made by petitioner is between 1st April, 2015 and 31st March, 2016. Moreover, coal dust supplied by the petitioner is not the only inputs to the company’s production. The petitioning creditor has replied to the company’s reply by his advocates letter dated August 11, 2016 and there is also a reply thereto from the company’s side. There are few other letters exchanged between the parties subsequent to the statutory noticed and the reply thereto. All the letters are on record. 6. Considering the said reply the following emerge. - (i) The company has received goods supplied by the petitioning creditor and have utilized the same for its production purpose. The unpaid bills of the petitioner is to the extent of Rs.16,26,453/-. - (ii) The bills raised by the petitioning creditor has been received by the company but the company is avoiding payment thereof on account of alleged overbilling and the goods being of inferior quality has caused damages. The petitioning creditor has allegedly over billed the said company for a sum of Rs. - (ii) The bills raised by the petitioning creditor has been received by the company but the company is avoiding payment thereof on account of alleged overbilling and the goods being of inferior quality has caused damages. The petitioning creditor has allegedly over billed the said company for a sum of Rs. 16,67,791/- and the company having allegedly suffered damages to the tune of Rs. 8,66,917/-. The said company is entitled to realize Rs. 8,98,225/- from the petitioning creditor. - (iii) There is no accounting dispute. The figures of the claim made by the petitioning creditor are correct but the entitlement thereof is disputed. - (iv) The said company relies upon unauthenticated rates of coal dust as market rate prevailing at the relevant time to allege over billing by the petitioning creditor. No internal audit report said to have been prepared for the financial year 2016 has been disclosed. Even if it is assumed for the sake of argument that a part of the supply was consumed by the said company in the 2016 financial year, the same is after expiry of a considerable period from the date of the last supply. - (v) The said company has, however, not denied that no sum was due as on March 31, 2015. It has only denied the quantum of Rs. 16,13,879.50p. 7. It appears from the affidavit filed by the said company that the company after receiving the winding up notice and replying to the same has on or about August 16, 2016 filed a money suit before the Learned Civil Judge (Senior Division) Jalpaiguri, inter alia, claiming a sum of Rs. 16,67,791/-on account of over invoice amount and Rs. 8,66,971/- on account of damages for supply of inferior quality of coal aggregating to Rs. 25,34,708/-. The company in its affidavit has also relied upon a report said to have been prepared by its Chartered Accountant on June 6, 2016 purporting to be audit the Coal bills of the petitioner giving a comparative analysis of the market price of the goods supplied by the petitioning creditor and the amount charged by the petitioner to impress upon the fact that the petitioning creditor has charged huge excess amount. The so called market rate mentioned in such report is also not supported by any official or authenticated rates. 8. The so called market rate mentioned in such report is also not supported by any official or authenticated rates. 8. After considering the materials on record and upon hearing the advocates for the respective parties it is an admitted position that no written purchase order for supply of the goods indicating the specification and rate of the coal dust to be supplied by the petitioning creditor was issued by the said company. The said company, however, received the materials as also the bills raised in respect thereof by the petitioning creditor. The said company has also consumed the goods. There is no contemporaneous complaint regarding the goods to be of inferior quality, though the supply has been over a considerable period of time and in tranches. If the said company had any grievance as to the quality of the coal dust supplied to it by the petitioner, the said company could have brought the same to the notice of the petitioning creditor immediately after receiving the first supply or the successive supplies or within a reasonable period of time there from and could have also rejected the goods. The said company on the contrary continued receive supply and consume the same. It also continued to make payments from time to time till it stopped payment. The last payment is on January 7, 2016 much after the first supply. The company has produced no letter sent to the petitioning creditor contemporaneously either regarding over billing or as to the inferior quality of the goods. Assuming without admitting the letter dated June 20, 2016 relied upon by the company was issued by the said company it is not addressed to the petitioning creditor to fasten any liability on him. The date of the letter is much after consuming the entire quantity. Moreover, there is no proof of delivery of the said letter. In the absence of any specification being mentioned as to the coal dust to be supplied by the petitioner to the said copy it is difficult to accept or hold at this stage that the goods supplied were of inferior in quality entitling the said company to resist the petitioner’s claim on such ground. In the absence of any specification being mentioned as to the coal dust to be supplied by the petitioner to the said copy it is difficult to accept or hold at this stage that the goods supplied were of inferior in quality entitling the said company to resist the petitioner’s claim on such ground. That apart, the whole issue as to inferior quality of supply surfaced in the company’s reply to statutory notice i.e. in August, 2016 after about five months from the last supply and that too after consuming the entire quality and after receiving the statutory notice. The internal audit report is not on record. The report of the Chartered Accountant is not backed by any official price list or authenticated rate. It is also much after the delivery was complete. There is no contemporaneous complaint and the conclusion as to overbilling has been arrived at by the said company without any prior reference to the petitioner. The petitioner was also not afforded any opportunity to even contradict the allegation. The company’s action including that of setting off the claim of the petitioner from its alleged dues is therefore unilateral. The claim in the company’s suit is also different from that alleged in the reply to the statutory notice. 9. In the circumstances as aforesaid the only conclusion that can be arrived at is that the company accepted the goods in view of the provisions of Section 42 of the Sale of Goods Act, 1930 having regard to the fact that the said company had reasonable opportunity to inspect the goods under the provisions of Section 41 of the said act of 1930 when there is no purchase order in writing. The said company having accepted the goods have failed to pay for the same and as such a debt has accrued which has given the petitioning creditor a cause to seek winding up of the said company. The company’s claim as to excess billing and damages unless proved cannot be said to be a counter claim to resist the petitioners claim in view of the chain of events as discussed above particularly when the said company has itself by set off the petitioner’s claim after admitting the amount and thereafter avoided making payment of the same. 10. The said company has relied upon a judgment reported in 2005(4) CHN 343 (SRC Steel (P) Ltd. Vs. 10. The said company has relied upon a judgment reported in 2005(4) CHN 343 (SRC Steel (P) Ltd. Vs. Bharat Industrial Corporation Ltd.) in support of its contention that the winding up application should be dismissed. In the said judgment the Division Bench of this Court has held that admission of a winding up petition is a discretionary order which has to be exercised only after arriving as to the nature of company’s defence i.e. whether the same is bona fide or moon shine or bogus or mala fide and the claim is indisputable. In the said report the Division Bench after considering the fact of that case, the bona fide nature of company’s defence had set aside the order of admission of the winding up petition. 11. In the instant case after considering the defence made out by the said company in its reply to the statutory notice as also the affidavit filed in the proceeding as discussed above, I am of the opinion that the defence put forth by company to resist the claim of the petitioning creditor is not a bona fide defence and is also not acceptable. The quality of defence as made out by the said company is also not such, which entitles the said company to have the issues to be relegated to suit upon the company securing the entire sum. The claim of the petitioning creditor is in disputable. So far as the suit filed by the said company is concerned it is based on alleged over billing by the petitioner and alleged damage suffered by the said company for inferior goods being supplied. If the company is able to establish its claim in the suit it will get a decree and realize the decreetal dues by executing the same. Filing of such suit that to in August 2016 cannot be allowed to be used as a tool by the said company to resist petitioner’s claim in the circumstances as aforesaid. 12. The winding up petition is therefore, admitted for a principal sum of Rs. 16,26,453.50p along with interest @10% considering the transaction to be commercial in nature and the prevailing banking rates when there is no agreed rate. The interest will carry from the date of issuance of the winding up the notice i.e. July 23, 2016. 12. The winding up petition is therefore, admitted for a principal sum of Rs. 16,26,453.50p along with interest @10% considering the transaction to be commercial in nature and the prevailing banking rates when there is no agreed rate. The interest will carry from the date of issuance of the winding up the notice i.e. July 23, 2016. The company, however, will be at liberty to pay of the entire principal amount with accrued interest in 10 (ten) installments out of which 9(nine) shall be equal monthly installment on reducing balance and the last installment i.e. 10th installment shall be for the remaining balance. The first of such installment shall be paid by July 17, 2018 and all successive payments to be made by 7th of the following months till the entire amount is fully paid. In default of payment of any of the installments the petitioning creditor will be at liberty to insert publication once in the “Telegraph” and once in “Bartaman” indicating that the matter will appear on a working Friday immediately after expiry of two weeks from the date of publication. In the event, if the company makes payment of the entire amount as indicated above, the company petition being C.P. 1033 of 2016 shall remain permanently stayed.