Sinha, J. - (1.) This is an appeal against an order passed by S. P. Mitra, J. dated 30th March 1961, whereby the learned Judge dismissed with costs an application by the Bangarsi Ice and Cold Storage Ltd. (hereinafter called the "company") for an order inter alia that the petition for the winding up of the company presented by Kali Charan Banerjee (hereafter called the "petitioning creditor") be taken off the tile or dismissed and that all proceedings thereunder be stayed and for other reliefs. The facts are shortly as follows: The company carries on business in the manufacturing of ice and in refrigeration. In January, 1957, the petitioning creditor joined the services of the company. On 14th January, 1957 he paid on account of security deposit, a sum of Rs. 1000/- to the company, without interest. On the same day he paid to the company a sum of Rs. 10,700/- on account of deposit carrying interest @ 8% p.a. refundable after 11/2 years. For both these two payments, the petitioning creditor holds receipts in writing copies whereof are to be found at pages 69 and 70 of the paper book. It is admitted that in the year ending 30th June, 1957, the company suffered a loss of Rs. 30550.15 nP. In the year ending 30th June, 1958 there was a loss of Rs. 175182.71 nP. On the 18th June, 1958 the petitioning creditor wrote a letter to the managing Agents of the company, a copy whereof is included in Ex. A annexed to the affidavit-in-opposition, at page 30 of the paper book. In that letter he stated that the negotiations for the marriage of his daughter were well advanced and arrangement should be made for the payment of his deposit money. This letter was not replied to. On the 22nd November, 1958, a sum of Rs. 1000/- was paid to the petitioning creditor and on the 5th December, 1958 another sum of Rs. 1000/- was paid to him. On the 5th June, 1959 the petitioning creditor wrote a letter to the Managing Agents, a copy whereof is included in the said Ex. A at page 31 of the paper book. In this letter, the petitioning creditor tendered his resignation and asked for repayment of the deposit amount to meet the expenses of the marriage of his daughter which, he said, was going to take place very soon, and for the purpose of meeting other expenses. On the same day, the petitioning creditor was paid a sum of Rs. 1000/- by cheque signed by Shyamapada Choudhury, the Director Manager of the Company, who has affirmed an affidavit in support of the application. On the 20th/22nd April, 1960 the petitioning creditor wrote to the company a letter which is included in Ex. A, at page 32 of the paper book. In that letter he said that the sum of Rs. 10,700/- had been paid to the company as deposit Because at that time money was badly needed by the company. Owing to the impending marriage of his daughter and other purposes he required money urgently and asked for an early payment. He pointed out that the deposit money had become refundable long time ago. This letter was also not replied to. On the nth May, 1960 another letter of demand was sent by the petitioning creditor to the company, a copy whereof is included in Ex. A and appears at page 33 of the paper book. In this third letter of demand, the petitioning creditor pointed out that the marriage of his daughter had been fixed on 22-5-1960 and immediate refund of the deposit money was required. As before, there was no reply to the letter. On 22nd June, 1960 another letter of demand was sent by the petitioning creditor to the company, a copy whereof is included in Ex. A and appears at page 34 of the paper book. He complained that owing to the non-payment of the deposit money, the date of marriage of his daughter had to be postponed. He pointed out that owing to lack of money he could not even make his two ends meet, as regards the daily necessities of himself and his family. On the 9th August, 1960 the petitioning creditor, through his solicitor, served notice on the company under section 434 of the Companies Act (hereinafter called the "said Act") demanding payment of the security money of Rs. 1000/- and the deposit money of Rs. 10,733.90 nP. with further interest, in default of which an application would be made to the Court for winding up of the company. On the 13th September 1960, a letter or note was written by Sunil Kumar Bhowmick, a Director of the company and a nephew of the said Shyamapada Choudhury, the Director Manager thereof, in the following terms: "My Dear Kalida, You must see me very soon. I have arranged with maternal uncle so that you get your money. He has said that he will pay the money. Immediately you come I hope, I will be able to cause the payment. You will get me if you come during office hours. Please accept my Pranam. Finish Rabi"
(2.) On the 17th September, 1960 the petitioning creditor received another letter or note from Sushil Chandra Roy, the Manager and Principal Officer of the company in the following terms: "My dear Kali Babu, There had been talks with Bara Babu about you. He has said that he will definitely pay your money. Please see at office as soon as possible. I hope you have received Rabi Babu's letter. Accept my Namaskar. Finish Rabi"
(3.) No money was, however, paid and on the 15th November, 1960 the solicitor for the petitioning creditor received a reply to the notice under section 434 issued on the 9th August, 1960, a copy of this letter is included in Annexure "A" to the affidavit of Shyamapada Choudhury, and appears at page 17 of the paper book. In that letter, it was pointed out that on the 31st July, 1958 the then directors of Chaudhuri Commercial Corporation Private Limited who were the Managing Agents of the company, retired and in their place new directors of the Managing Agents were appointed, and the said new directors of the Managing Agents managed the affairs of the company till the 15th August 1960, when the managing agency was terminated. It was then stated that lately the company had become suspicious of the dealings of the past management and the accounts were being scrutinised. It was finally stated as follows: "From the scrutiny of the accounts which is now being made it appears that the said past management in collusion and conspiracy with each other and some of the Officers of my clients fraudulently made various fictitious entries in the Books of my clients, with the ulterior motive of making wrongful gains. But prior thereto my clients in good faith made certain payments to your client. The matter has been placed in the hands of the Detective Department. In the premises unless the scrutiny is completed my clients cannot accept any liability for payment of any amount to your clients.";