GIRISH CHANDRA GUPTA, J. - (1.) THIS is a winding up petition made under Sections 433, 434 and 439 of the Companies Act, 1956 ('the Act') by a creditor alleging that the company is deemed to be commercially insolvent inasmuch as the company failedand neglected to pay or to secure or to compound to the reasonable satisfaction of the creditor a sum of Rs. 5 lakhs together with interest. The facts of the case briefly stated are as follows:
(2.) THE petitioning creditor lent and advanced a sum of Rs. 5 lakhs to the company by an account -payee -cheque as and by way of a short -term loan repayable on demand after three months together with interest at the rate of 15 per cent per annum. The money was lent and advanced on 2 -3 -1998. For the financial year ended on 31 -3 -1998 a sum of Rs. 6,164 became due and payable by the company to the petitioner on account of interest. The company issued a certificate of deduction of tax at source under Section 203 of the Income -tax Act, 1961 certifying that a sum of Rs. 1,233 had been deducted on account of tax and also signed a confirmation of accounts as on 1 -4 -1998 confirming that a sum of Rs. 5,04,931 remained due and payable by the company to the petitioner. The company thereafter is stated to have paid interest from time to time and last of such payment was made on 16 -11 -1998. The company thereafter did not make any payment inspite of demand. In the premises, a statutory notice dated 20 -2 -2001 was caused to be issued by the petitioning creditor to the company. The statutory notice under Section 434 addressed to the registered office of the company came back with the endorsement 'not known'. A copy of the statutory notice addressed to another office of the company at No. 35, Vivekananda Road, Calcutta - 7 came back with the endorsement absent on 26 -2 -2001 and left on 27 -2 -2001. A copy of the statutory notice sent to Siris Poddar, one of the Directors came back with the endorsement 'refused' on 22 -2 -2001. Another copy of the statutory notice was, however, served on Om Prakash Sharaf, another Director of the company on 26 -2 -2001. The company, however, did not reply to the statutory notice. The company has field an affidavit -in -opposition. With regard to service of the statutory notice upon the director, the company has alleged as follows : 'I further state and submit that the said notice is illegal, invalid and without authority of law. I further say that service and/or non -service of the purported notice upon the directors of the company is irrelevant for the purpose of the present proceedings.' With regard to service of the statutory notice by the petitioner, the company has got to state as follows : - - 'I deny that any statutory notice was served upon my company in accordance with law or otherwise claimed in annexure 'C' to the said petition.'
(3.) IT is alleged by the company that pursuant to an oral guarantee of thepetitioning creditor, goods worth Rs. 92,477.43 were supplied by the petitioning creditor to one M/s. Jai Hanuman Plywood for Rs. 92,477.43which, according to the company, the said purchaser failed to pay and, therefore, the company is sought to be held liable for the aforesaid sum. A further sum of Rs. 15,000 is alleged to have been paid by the company to the petitioning creditor for payment to Haldiram Bhujiawala for supply of confectioneries which, according to the company, was never supplied. In order to evidence such payment, a certificate issued by Bank of Baroda has been disclosed which does not, however, show that the alleged sum of Rs. 15,000 was paid to the petitioning creditor. No other or further payment is alleged to have been made by the company to the petitioning creditor.;