Surinder Singh Nijjar, CJ. - (1.) This letters patent appeal has been filed against the judgment of the learned Single Judge dated 23rd February, 2004 admitting the winding up petition to the extent US $ 95,659.54 equivalent to Rs. 45,10,347.30 paisa with interest at the rate of Rs. 9% per annum from the date of winding up notice until payment is made.
(2.) The petitioning creditor is carrying on business of leasing out inter alia various types of Dry-van containers. It claims that at the request of the company, the petitioner agreed to grant and the company agreed to take on lease for an initial period of one year commencing from 1st July, 1997, Dry- van containers of different specifications. The terms and conditions of such leasing were recorded in writing subsequently in an agreement executed on 30th January, 1998. The agreement was, however, given retrospective effect from July 1, 1997. The agreement was renewed from time to time and is still in force which would appear from dealings and transactions and the course of conduct by and between the parties. The petitioner had in course of dealings and transactions raised its invoices for lease rentals in respect of the containers, which were duly accepted by the company without any objection. The company was bound and liable to pay lease rentals and other dues to the petitioner on monthly basis within 30 days from the date of submission of the invoices. After giving credit to the company for all sums paid by and/or received on its behalf and/or credited to have been paid, a sum of US $ 77,567.07 became due and payable by the company to the petitioner as on 30th of April, 2001. Thereafter, the company had approached the petitioner to allow it to pay the outstanding amount in instalments. At the request of the company, the petitioner had agreed to accept the payment of the due amount by monthly instalments of not less than US $ 4,750 together with interest at the rate of 8% per annum from 1st May, 2001. The terms and conditions between the parties were recorded in an agreement dated 11th May, 2001. This agreement is alleged to have been signed by and/or on behalf of the company on 11th May, 2001. The agreement specifically acknowledges that it is indebted to the petitioner as claimed. The company, however, failed, neglected and refused to pay any instalments in terms of the agreement or otherwise.
(3.) This apart, the petitioner had also raised invoices for service charges and/or interest during a period between 1st May, 2001 and 30th April, 2002. These invoices had also been accepted by the company without raising any objection thereto. The company has failed and neglected and/or refused, to pay the sums due or any part and/or portion thereof. Petitioner also claims future interest on the outstanding at the agreed rate of 8% per annum from 1st May, 2002 until realization. Petitioner claims to have made demands on the company from time to time. Copies of the letters attached with the petition as annexed "E" collectively. The company, however, did not respond to the aforesaid letters. There is now due and owing by the company to the petitioner a sum of US $ 95,659.54 on 30th April, 2002. Not receiving any response from the company a statutory notice under section 434 of the Companies Act was served by the petitioner through a letter dated 8th April, 2002. The notice was duly sent to the petitioner at the registered office of the company through a special messenger. This was duly received by the company on 8th of April, 2002. It is pointed out in the petition that inadvertently the petitioner had wrongly mentioned that total claim US $ 1,11,372.99 upto and including 28th February, 2002. The notice was duly accepted by the company by letter dated 29th April, 2002 through its Solicitor. In this letter the company expressed its surprise to read the contents of the letter and the petition dated 8th April, 2002. The company was requested to send copies of the alleged agreement before any reply is given to the statutory notice. The petitioner claims to have offered inspection to the company. Since, the company has failed or neglected to pay the sums due, the petitioning creditor had moved for winding up of the company before the Company Court.;