- (1.) A. K. Banerji, J. By means of this company petition filed under Section 433 (e) and (1) of the Companies Act, 1956 (the Act in short) the petitioner M/s. Agarwal Bristles Corporation (Petitioner in short) has sought the winding-up of the company M/s. Brjushware & Company Limited (Respondent-company), on the ground that the said respondent is in debted to the petitioner and has not paid its dues despite tie service of statutory notice, hence, it will be deemed to be un able to pay its debts and, therefore, wound-up.
(2.) THE case of the petitioner in brief is that it had been supplying bristles to the respondent-company between the period 1986 to 1995 on credit basis. Out of the supplied made for the amount of Rs. 5,48,303. 27 paise an amount of Rs. 3,87,786. 52 poisoning bills but then 1,60,516. . 75 paise very paid against run-e was a balance of Rs. which the respondent Rajesh did not pay despite demands. Consequent ly, the petitioner sent a notice of demand dated 9-11-1996. Despite the same, the respondent failed to pay the amount along with interest hence], it failed and neglected to pay its dues. On notice toeing issued, the respon dent-company has put in appearance and has filed a counteri affidavit in which it has been inter alia, denied that the respondent is indebted to the petitioner. It was further stated that the amount demanded under the notice was n0t payable besides the demand was also birred by time. I have heard the learned counsel for the parties.
(3.) A preliminary objection was raised by Sri J. N. Tewari, learned senior counsel appearing for the respondent-company that the petition was not maintainable as the notice allegedly served on the respon dent was not a notice under Section 434 (l) (a) of the Act but appeared to be a notice under Section 80, C. P. C. , demand ing a sum of money failing which the respondent was threatened with a Suit. In the alternative, it was also contended that in any view of the matter, the petitioner could not claim any amount from the respondent as the same was time barred. The first submission made by the learned counsel for the respondent is not without force. The copy of the notice dated 9- 11-1996 addressed to the respondent-company has been annexed as Annexure-1 to the company petition. From the perusal of the same it would be evident that the petitioner had claimed Rs. 1,60,516. 27 paise with interest @ 18 per cent per annum from the respondent and had men tioned that in case the respondent failed to pay this amount then a Suit would be filed against them for a decree for the said amount along with interest and the respondent shall also be liable for the cost of the Suit. In the last paragraph of the notice, it has been mentioned that if the amount is not paid after the expiry of 60 days of the service of notice, suitable legal action will be taken against the respon dent. A copy of the said notice was also forwarded to the Secretary, Ministry of Textiles, Government of India, New Delhi, for information and necessary action. Sri Tandon, learned counsel for the petitioner has contended that as the petitioner had demanded a specified sum of money and had indicated that suitable legal action will be taken in case the same is not paid within 60 days, this can in effect be treated to be a notice under Section 434 of the Act. He has further contended that just because a period of two months has been given for making payment of the. amount instead of 2. 1 days, this would not make the notice invalid. On the other hand, the learned counsel for the respon dent has contended that in paragraphs 6 and 7 of the said notice, the petitioner has clearly indicated that it would file a Suit in case the money is not paid back with inter est. In the last paragraph of the notice, the payment was required to be made after the expiry of 60 days as the company was taken over by the Government of India. Conse quently, as per the notice under Section 80, C. P. C. , two months period was given to the respondent before filing the Suit. Such a notice, learned counsel contends could not be treated to be a notice umer Section 434 (1 ) (a) of the Act for winding up the company.;