Satyabrata Mitra, J. - (1.) This is an application of N. K. Gossain and Co. Pvt. Ltd. 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 February 6, 1986, the company placed orders to the petitioning creditor for printing of 38,000 copies of the 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, and 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 these materials. Thereafter, the petitioning creditor raised bills on March 28, 1986, for a sum of Rs. 3,68,670.02 which were received by the company on March 31, 1986. The petitioning creditor states that the company made a part payment of Rs. 50,000 on September 20, 1986, and, thereafter, no payment has been made towards the said bills by the company. On demand being made for payment of the outstanding dues, the company, by letter dated December 11, 1986, informed the petitioning creditor that the company had received the necessary sanction from financial institutions regarding their project which was explained to the representatives of the petitioning creditor. It was stated in the said letter that the company was expecting to receive funds in the month of January, 1987, and will be releasing payments to the petitioning creditor in the month of January, 1987. Thereafter, on January 28, 1987, the company again wrote to the petitioning creditor reiterating the statements made in their letter of December 11, 1986, but due to delay in receiving the sanctioned letter from the Industrial Credit and Investment Corporation of India and processing delay, the company were yet to receive the fund and expected to receive the same within February/March, 1987, but in case they received the money at an earlier date, they would make payment forthwith and regretted the inconvenience caused to the petitioning creditor. In spite of this assurance made, the company did not make payment and thereafter the petitioning creditor issued the statutory notice under Sec. 434 of the Companies Act, 1956, on October 17, 1987. Not having received any reply to the statutory notice, the petitioning creditor waited till December 18, 1987, when they filed the instant petition for winding up of the company.
(3.) At the outset, 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 inadvertence or otherwise, the outstanding amount claimed in the statutory notice was paid 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 Sec. 434(1)(a) of the Companies Act whereby the said notice could be impeached as not having mentioned the deadline of 21 days as appears under Sec. 434(1)(a) of the Companies Act. Learned advocate appearing for the company had taken a point that the said notice was bad and not in conformity with the provisions of the Act. Therefore, the matter was allowed to be adjourned for some time for consideration of the import of the said 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.;