- (1.) The Court. This is an application of M/s. N. K. Gossain & Co. Pvt. for winding up of Dytron (India) Ltd. on the ground of inability to pay the debts due to the petitioning creditor.
(2.) The case of the petitioning creditor is that on 6th February, 1986 the Company placed orders to the petitioning creditor for printing of 38,000 copies of annual reports of the Company. The petitioning creditor after completing the printing job delivered those materials to the said Company in the month of March, 1986 the company received those materials and accepted them without raising any objection. It is the case of the petitioning creditor that the Company utilised the said materials and must be deemed to have accepted the printing job of those materials. Thereafter the petitioning creditor raised the bills on the 28th March, 1986 for a sum of Rs. 3,68,670.02p which was received by Company on 31st March, 1986. The petitioning creditor states the Company made a part payment of Rs. 50,000 on 20th September, 1986 and thereafter no payment has been made towards the said bill by the Company. On demand being made payment of the outstanding dues the Company by a letter , dated 11th December, 1986 informed the petitioning creditor that Company had received the necessary sanctions from the Financial Institutions regarding their project which was explained to the representatives of the petitioning creditor. It was stated he said letter that the Company was expecting to receive the funds in the month of January, 1987 and will be releasing payments to the petitioning creditor in the month of January, 1987. Thereafter, on 28th January, 1987 the Company again wrote to the petitioning creditor reiterating the statements made in their letter of 11th December, 1986 but due to delay in receiving the sanctioned letter from the Industrial Credit & Investment Corporation of India and processing delay, the Company were yet to receive the fund and expected to receive the same within February/March 7, but in case they received the money at an earlier date they would make payment forthwith and regretted for the inconvenience caused to the petitioning creditor. Inspite of this assurance made, Company did not make payment and thereafter the petitioning creditor issued the statutory notice under Section 434 of the Companies Act on the 17th October, 1987. Not having received any reply to the statutory notice, the petitioning creditor had waited till 18th December, 1987 when they filed instant petition winding up of the Company.
(3.) At the outside the learned Advocate Mr. Sarkar appearing on behalf of the petitioning creditor has very fairly and in the true tradition of the Bar submitted before me that due to some inadvertance or otherwise the outstanding amount was claimed to be paid in the statutory notice within 7 days from the receipt of the notice and he also submitted that this might not be in the usual form of notice but asserted that there is nothing in the Act under Section. 434 (1)(a) of the Companies Act whereby the said notice could be impeached as not having mentioned the dead line of 21 days as is appearing under Section 434(1) (a) of the Companies Act. The learned Advocate appearing for the company had taken that point that the said notice was bad and not in conformity with the provision of the Act. Therefore, the matter was allowed to be adjourned for some time for consideration of the import of the Raid notice by the learned Advocates appearing for both the parties. Thereafter the matter came up before me for hearing on the limited question of admissibility of the winding up petition.;