JUDGMENT
1. We are in respectful agreement with the reasoning given and the order passed by the hon'ble Sunil Ambwani, J., on November 29, 20051. In his lordship's order sitting as company judge he refused to pass a receiving order on the winding up petition of the appellant.
2. The statutory notice was served on the allegation that goods sold and supplied were not paid for. The company took the defence that the goods were returned, although cheques had been issued and dishonoured. It further stated that numerous subsequent supplies were made by the petitioner, and duly paid for by the company. It is stated as purchases had at first been made the sales tax declaration forms were given ; the case was that on the petitioning creditor claiming undue interest the company refused to pay and this gave rise to the winding up petition. His Lordship has said: "...it is difficult to believe that the supplies received by the respondent-company were taken back...."
3. His Lordship further said " I do not find that the defence raised by the respondent-company is mala fide or is moonshine".
4. On the basis of these findings his Lordship refused to admit the winding up petition. It is well known that unless the defence of the company is moonshine, the winding up procedure is not the proper one. We also note that the supplies were made in 1996, and in the winding up petition in 1999, the petitioner has never obtained a self restraining injunction so as to save the period of limitation for a suit. No suit has been filed. It is possible that as the claim was not fool-proof, it was thought to be an unbusiness like expenditure to spend on court fees, etc. This is somewhat of a conjecture but these conjectures are useless in these matters.
5. The appeal is thus dismissed.