- (1.) The petitioner-company has filed the present petition under Sections 433(e), 434 and 439 of the Companies Act, 1956 (in short, "the Act") for winding up of the respondent-company for its inability to pay its liability and for the reason that it is just and equitable to wind up the aforesaid company.
(2.) The petitioner company is a private limited company and is engaged in the business of manufacturing, trading and sale of sugar boiled confectionary like sweets, candies etc. and also packaging material. The respondent company is a limited company incorporated under the provisions of the Act. It placed an order on the petitionercompany for packing material for the packaging of 'Lejon' brand of sweets and candies manufactured and sold by the respondent- company. The petitioner supplied the packaging material and had also issued invoice No.1 dated 25.4.2007 for a sum of Rs.4,08,815/-. The said material sent by the petitioner has been duly received and consumed by the respondent-company. The respondent-company did not make the payment of the said amount. The petitioner-company issued letters and reminders to the respondent-company for making payment. No payment has been made by the respondent-company. The respondent-company had also issued Form 'C' to the petitionercompany being the Form of declaration to avail sales tax concession. The petitioner has also obtained balance sheet of the respondentCompany as on 31 st March 2009 which shows that the respondent company has admitted that an amount of Rs.4,08,815/- is due and payable to the petitioner. The name of the petitioner appears in the detail of sundry creditors of the respondent-company. As per terms and conditions on the invoice issued by the petitioner, it is entitled to charge interest @ 28% per annum on the over due accounts. No payment being made by the respondent company, the petitioner sent a legal notice dated 30.3.2010 under Sections 433 and 434 of the Act to the respondent-company for payment of the aforesaid amount alongwith interest at the rate of 28% per annum from the date of invoice till payment. No reply to legal notice has been received nor payment has been made till date. Hence the present petition for winding up.
(3.) Notice of this petition was issued to the respondentcompany. The petition has been contested by the respondent by filing reply. The primary ground of contest as raised in paras 10 to 12 of the reply is that the petitioner had closed its manufacturing unit and had requested the respondent to keep the packing material with it with the condition that the payment shall be subject to the sale of the material and therefore, no amount as claimed by the petitioner is due.;