P.K.Majumdar, J. - (1.) This is an application by the applicant for stay of the operation of the judgment and order under appeal dated 7th September, 1992 passed in the Company Petition No. 155 of 1992 (Smith Stanistreet Pharmaceuticals Ltd.) and all proceedings thereunder. Smith Stanistreet Pharmaceuticals Ltd., a company incorporated under the Companies Act, 1956, is the appellant.
(2.) The petitioning creditor Nester Pharmaceuticals (P) Ltd., a company incorporated under the Companies Act, 1956 presented an application under sections 433 and 434 of the Companies Act, 1956 for winding up of the appellant company on the ground, inter alia, that the company is commercially insolvent. According to the petitioning creditor, the appellant Company was indebted to the respondent petitioning creditor for a sum of Rs. 11,54,244.72P. and after giving credit for payments, the balance sum was to the extent of Rs. 10,37,358.17P. which sum the appellant company failed to pay. Statutory notice was served on the appellant company and there was no reply to such notice from the appellant company.
(3.) The appellant company raised the defence before the trial court (i) there was no ascertained sum due by the appellant company to the petitioning creditor. Until the accounts were reconciled, it could not be said as to what was the exact sum payable by the appellant to the petitioning creditor, (ii) the appellant Company had made payments to the petitioning creditor subsequent to the issuance of the statutory notice under section 434 of the Companies Act and as such the petitioning creditor must be deemed to have waived its right to proceedings for the purpose of winding up of the company, and (iii) there was no agreement as to the payment of interest.;