Ashim Kumar Banerjee, J. - (1.) I have the proud privilege to go through the well versed judgment and order of my esteem colleague My Lord justice Ashis Kumar Chakraborty. With deepest regard I have for His Lordship, and with all humility, may I say, I could not convince myself to agree with His Lordship's ultimate decision on the issue. His Lordship's appreciation of factual scenario is commendable and would need no repetition. So is the discussion on the point of law. However, my perception would give a relook to the legal proposition that would be relevant herein. In the present context, such relook would prompt me to hold otherwise.
(2.) THE law of winding up as I understand from the statute law so explained by the judge made law so far pronounced, would perhaps not permit the company Court to admit this petition for winding up. Let me discuss the law as I understand: In a winding up proceeding, the learned company Judge has wide discretion to exercise. Even if the learned Judge is satisfied on the claim of the creditor, it could be refused considering various other aspects. In a civil suit, where creditor seeks a debtor and the debtor has successfully proved his claim decree would be a natural course. In a petition for winding up, it would depend upon various other factors irrespective of proof of claim. At the pre admission stage, the company Court would examine the claim and if it is a just debt that would have no defence from the company, the admission would be inevitable. Section 434 of the Companies Act 1956 would give handle to an unsecured creditor to sue the debtor company for winding up on the strength of the presumption of insolvency. The provision would provide, when the creditor would raise a demand on the company, the company would have two courses left open, either to secure the claim to the satisfaction of the creditor or dispute the claim with plausible cause.
(3.) A creditor who has unpaid dues could only be reasonably satisfied if company has the means to pay. When the creditor serves the notice upon the company asking them to pay off the dues the company has option either to pay off or dispute the same. Even if the company has means to pay and does not pay without any reasonable cause it would be liable to be wound up.;