Sanjib Banerjee, J. - (1.) The company takes a preliminary objection that no presumption arises in this case of the company's inability to pay its debts since no notice was issued by the petitioning creditor at the registered office of the company and, on the basis of the petition, it would be evident that the two other limbs of Section 434(1) of the Companies Act, 1956 are not attracted.
(2.) Upon this creditor's petition for winding up the company being served on the company, affidavit directions were issued on November 29, 2011. The company indicated on such date that the petition was not maintainable in the absence of any statutory notice having been issued. However, on February 8, 2012, the parties agreed that the petition would remain adjourned sine die but the petitioner would be entitled to seek inclusion of the petition in the list upon a default being made by the company in CP No. 592 of 2011 in making payment to the petitioner in such proceedings in terms of the order passed in CP No. 592 of 2011 on the same day. Simultaneously, a concession was recorded on behalf of the petitioning creditor that if the company in CP No. 592 of 2011, Ramsarup Industries Limited, did not make default in making payment in terms of the order passed in CP No. 592 of 2011, the petitioner herein would take no further steps in the criminal proceedings launched against the directors and officers of this company in Gurgaon. Ramsarup Industries Limited has defaulted in making payment in terms of the order passed on February 8, 2012 in CP No. 592 of 2011. Consequently, the petitioner herein has caused this matter to be taken up for hearing.
(3.) It is the admitted position that the present petition is founded on a notice dated May 28, 2010 addressed to the company and three of its directors and captioned as a notice under Section 138(b) of the Negotiable Instruments Act. The notice, issued by advocate representing the petitioner, did not refer to the Companies Act but demanded payment of a principal sum in excess of Rs. 4 crore together with interest thereon within 15 days of the receipt of the notice and warned of legal action being initiated in default of the payment being made as demanded. The notice was issued to the erstwhile registered office of the company at 12A Netaji Subhas Road, Kolkata. In the cause title relating to this petition, the petitioner has indicated the registered office of the company to be at 18/1 Maharshi Debendra Road, Kolkata 700 007.;