S.K.Mukherjee, J. - (1.) This appeal is directed against an order of Roy Chowdhury J. dated July 19, 1972, by which the learned judge refused to stay an application for winding up. The petitioner before his Lordship, who is the appellant before us, was liable to pay a large sum of money to the respondent who was at a certain point of time a director of the appellant-company. On January 15, 1966, the respondent made an application for winding up of the appellant-company. Thereafter, on January 28, 1966, the appellant applied to this court for an order that the said winding-up application being Company Petition No. 6 of 1966 be taken off the file, and alternatively all other proceedings including advertisement of the said company petition be permanently stayed. On April 4, 1966, the application made by the appellant was disposed of by an order of B. C. Mitra J. by consent of parties in accordance with certain terms of settlement filed in court. It will be necessary for the purpose of this appeal to set out some of these terms in extenso : "(i) The company admits that a sum of Rs. 38,000 on account of principal and Rs. 12,519 as interest up to October, 1965, is due to the petitioning-creditor. The company also admits that it is liable to pay the petitioning-creditor's interest on the principal amount at 9% per annum from November, 1965, till payment. The company hereby creates a floating charge on all its presents as per schedule below and future fixed assets as a first charge. (ii) The company will pay the entire dues of the petitioning creditor as aforesaid within 31st March, 1969. The company will pay Rs. 10,000 within 4th April, 1966, and in respect of the balance the company will pay a sum of not less than Rs. 6,000 every six months, first of such payment is to be made on or before the 31st October, 1966, but the company in any event will pay out of the half yearly amount of Rs. 6,000 mentioned above a sum not less than Rs. 500 per month. First of such monthly payments is to be made on or before the 15th May, 1966. In default of the initial payment of Rs. 20,000 or any monthly minimum payment of Rs. 500 or in case in any half year the monthly payment during the said half-year do not amount to the minimum of Rs. 6,000 the petitioning creditor will at once have right to realise his dues then remaining due in such manner as he may think fit."
(2.) It is not in dispute that the appellant paid to the petitioning-creditor who is the respondent before us a total sum of Rs. 16,000 by October 1966, after which all payments ceased.
(3.) On May 2, 1967, the respondent served a notice on the appellant under Section 434 of the Companies Act. In that notice the solicitor for the respondent claimed that after crediting the sum of Rs. 16,000 paid by the appellant which the respondent had appropriated towards payment of interest on the principal, the balance of Rs. 37,369 together with interest till realisation had become payable by the appellant. It is quite clear that the position taken by the respondent was that in view of the defaults made in payment of instalments payable under the consent order the entire balance then remaining due had become payable. Thereafter, an application for winding up was presented by the respondent but was withdrawn on March 13, 1969, with liberty to make a fresh application. It appears that another notice under Section 434 of the Companies Act was served on the appellant on June 3, 1969, but no action was taken on the same. On November 19, 1970, one more notice under Section 434 of the Companies Act was served on the appellant by the respondent and in January, 1971, a petition for winding up was presented by the respondent for winding up of the appellant-company. The said petition was duly admitted and a notice was sent to the appellant-company by which intimation of the admission of the petition by the court was duly given. On May 18, 1971, an application for stay of winding up was made by the appellant-company. The said application was disposed of by Roy Chowdhury J. by an order dated July 19, 1972, dismissing the application. From that order the company has come up in appeal.;