1. ' NADEEM AZHAR SIDDIQI, J.---This petition has been filed for winding up of the respondent on the ground that the respondent is unable to pay the admitted debts of US$ 1,710,690.85 to the petitioner. The facts necessary for disposal of the petitioner as stated in the petition are that under Joint Venture Contract signed by the petitioner on 21-3-2006 and by the respondent on 6-4-2006 the respondent is required to pay the petitioner US$ 2,780,344,50 on or before 7th March, 2007 and on failure of the respondent to pay the amount notice was served in response whereof the respondent admitted its liability to pay a sum of US$ 1,710,690,85. The petitioner served notice under section 306 the Companies Ordinance, 1984 for payment of undisputed amount and notice of intent to arbitrate under the JVC for the disputed amount.
2. ' N. Counter to the main application has been filed. However, the respondent has filed counter- affidavit to various miscellaneous applications filed by the petitioner.
3. ' In the counter-affidavit to C.M.A. No,720 of 2007 the respondent has not denied the agreement and C.M.A. Submitted that the total amount payable to the petitioner was worked out to be US$ 1,710,690.85. The respondent has further submitted in the counter-affidavit that the said amount could be paid to the petitioner only when the documents for cargo were made available as the respondent had got the cargo released under Letter of Indemnity (LOI).
4. ' Learned counsel for the petitioner submits that the amount is admitted and the required notice under section 306(a) of the Companies Ordinance, 1984 was served on the respondent who within thirty days, thereafter, neglected to pay the sum and by implication of law is deemed to be unable to pay its debts. He then submits that for the disputed amount award has been passed, which was filed in Court. He then submits that in the counter-affidavit as well as in the additional counter- affidavit the respondent has admitted the amount and the admission is sufficient to wind up the respondent.
5. ' On the other hand, learned counsel for the respondent submits that the amount was not paid as there is a bona fide dispute between the parties with regard to the right of the petitioner to receive the amount in absence or delivery or original documents and that the respondent has filed a suit bearing No,961 of 2007 and had a lien on the said amount and are holding the same as security for their claim in the suit. He then submits that mere avoidance to pay the debt due to bona fide dispute is not sufficient to wind up the company. He then submits that the petitioner has filed this petition to pressurize the respondent a commercially viable co, to pay the dept otherwise not due.
6. He has relied upon the judgment reported as Humera Abdul Aziz Essa v. Al-Abbas Cement Industries Ltd. 2008 CLD 214.
7. ' During the course of hearing the learned counsel for respondent has made a statement that the respondent has deposited the disputed amount in FDR and can deposit the same in Court in Suit No,961 of 2007 subject to decision of that suit.
8. ' Learned counsel for the respondent in rebuttal submits that the Court has to see whether the dispute is bona fide or just to avoid payment. He then submits that the original documents have been placed on record and Letter of Indemnity against the payment has been delivered to the respondent and the respondent has no justification to withhold the amount on the pretext of pendency of suit for damages.
9. ' I have heard the learned counsel for the parties and perused the record of this case made available before me.
10. ' From the pleadings of the parties it appears that the Joint Venture Contract is not disputed. The respondent has also not disputed an amount of US$ 1,710,690.85. The only dispute appears to be non-delivery of original documents and pendency of Suit No,961 of 2007. The petitioner has deposited one set of original documents for the cargo in Court. In its rejoinder the petitioner has explained that one Bill of Lading was to be provided to the respondent once the sales had been finalized, which was not done because of the respondent's refusal to pay the entire amount. The second Bill of Lading was provided to the owner of vessel and the third Bill of Lading was given to the insurer. The contention of the respondent that the amount is held in trust till such time the petitioner is able to produce all the original documents to discharge the respondent's liability towards any claimant has no force for the reason that the petitioner has accounted for the original Bill of Lading, provided Letter of Indemnity to the vessel and in spite of considerable longtime no claim has been received by the respondent with regard to the cargo and above all the petitioner has not only indemnified the vessel, but also indemnify the respondent by issuing Letter of Indemnity. The other contention of the respondent is filing of suit for damages. Mere filing of the suit is not sufficient and justified to withhold the admitted amount. The claim for damages is not a vested right and the grant of damages is subject to proof and mere filing of a suit A cannot be termed as a bona fide dispute.
11. ' In view of the above, it is apparent that the respondent is not withholding the amount due to any bona fide dispute but with mala fide intention not to pay the admitted amount to the respondent.
12. The contention of the learned counsel for respondent has also no force as the petition has been filed for the admitted amount and it cannot be said that the same was filed just to pressurize the respondent.
13. ' From the conduct of the company, it cannot be said that neglect to pay the debt is premised on bona fide dispute.
14. ' In the instant matter the respondent admits the claim of the petitioner to the extent US$ 170,690.85. Section 305(e) gives right to a creditor to seek an order of winding-up provided conditions set at in sections 306 and 314 of the Companies Ordinance, 1984. Are met. Neglect on the part of the company to pay the sum due after thirty days of the service of notice deemed to be unable to pay its debts. Such neglect to pay furnishes a ground for winding up of the company, irrespective of the fact that the company is commercially solvent.
15. ' The respondent in this matter was not able to show that the winding up petition had been filed as a pressure tactic. Section 314 of the Companies Ordinance, 1984 provides that even if the Court was of the opinion that the facts justified in making a winding up order, Court could pass other order as it may deem fit. Exercising the discretion under section 314 (1) of the Companies Ordinance, 1984 I direct the respondent to pay the undisputed amount of US$ 1,710,690.85 to the petitioner within four weeks from to day and on failure of the company/ respondent to pay the said amount within above stipulated period the company/respondent is directed to be wound-up. In case the winding up order is to be drawn the Official Assignee is appointed as official Liquidator to carry out the winding up of the respondent as provided for under the Companies Ordinance, 1984.
16. Copy of this judgment be sent to the Registrar of Companies and to the Official Assignee for Compliance.
17. ' The petition is allowed in the above terms.