- (1.)This petition has been filed under section 433 and 434 of the Companies Act, 1956, herein after referred to as the Act, for winding up the respondent company, namely Ghooronia Tea Co Pvt Ltd and for appointment of official liquidator.
(2.)The petitioner is a registered partnership firm having its registered office at Dibrugarh, Assam and is engaged in the business of banking. The respondent company have been borrowing money from the petitioner firm from time to time for the purpose of payment to the members of the staff and the workers and to meet other financial exigencies. The terms and conditions amongst others also include payment of interest at the rate of 24% and fixed monthly commission of Rs. 1,500/-. The respondent company was not in default in repayment till 1996. By the letter dated 23.12.97, the company admitted their liability for repayment of Rs.7,21,127.73 and promised to clear the same on or before 23.12.97. Subsequent thereto, the respondent company also issued six pay orders. Thereafter it defaulted and made no payment. The outstanding amount as on 30.4.2000 was Rs. 11,95,586. The petitioner firm issued legal notice demanding payment of the outstanding amount within a period of three months. The company failed to discharge their liability.
(3.)The company in their affidavit-in-opposition categorically denied its liability and challenged the maintainability of the petition. It has been submitted that the petitioner firm is engaged in the business of money lending without registration under the provisions of the Money Lenders Act, 1934. Besides, allegations have been levelled that certain cheques issued by the respondent company were not encashed and the petitioner firm misused the said cheques. It is further submitted that the respondent company agreed to pay an amount of Rs.7,21,000 on threat of criminal prosecution posed by the petitioner firm. There was no agreement for payment of any interest and the outstanding balance was liquidated in kind by delivery of 9,120 Kgs of black tea worth Rs.6,00,000. The respondent company further averred that there is a complete change of the share holding by transfer and sale, and the ownership and management of the company has devolved upon new share holders. The petitioner firm is trying to make unlawful gain by taking advantage of this changed situation. The allegation that the company is insolvent and unable to discharge its debt have been denied. It is specifically averred that the company is a sound concern earning profit and, therefore, the question of winding up does not arise.