SHARMA, J. - (1.) THIS is a company petition u/s. 433 (e) of the Companies Act, 1956 (for short 'the Act' ).
(2.) BEFORE admitting the company petition and advertising it, it was thought proper to give notice to the non-petitioner M/s Jaipur Glass and Potteries Works Ltd. , Tonk Road, Jaipur. The case of the petitioner is that Bhanwarlal Sharma, is the sole proprietor of M/s. Surajnarain Bhanwarlal Sharma and deals in the business of making and selling wood boxes. M/s Jaipur Glass & Potteries Ltd. (for short 'the Company') had purchased at different times through different bills the woodden boxes during the period from 31. 7. 88 to 31. 3. 1989 payment of which is still lying due to the petitioner-company and even after a laps of long period the payment was not made and, therefore, a registered notice was served on 16. 12. 1989 which was duly served on the company and it was called upon to make the payment within a period of 17 days. Notice was given u/s. 433 of the Act. But despite the expiry of statutory period of 21 days the amount was not paid. In the reply to show cause notice, the company has come out with a case that the petition is not bonafide, having been filed for recovery of the amount and amounts to misuse of powers u/s. 433 and 434 of the Act and should be dismissed. It is also the case in para 4 of the reply that the credits are disputed. According to the respondent there is no allegation in the company-petition that the company substratum has been lost and it merely seeks to carry out recovery of some undetermined and disputed trade debts, which is not the function of the Hon'ble Court. The company admits that it had sent a statement of account containing certain transactions which had taken place for the period from July 1988 to March 1989 which shows credit balance of Rs. 105,855/ -. However, according to the company the sales of wooden boxes started sometime in 1984-85 and the problem of rejection and supply of substandard material had started after September 1987. The company has been consistently pointing out these facts of sub-standard and rejectable boxes to the petitioner. According to the company,the petitioner raises a bill No. 1223 dated 30. 11. 1988 for the supply of 400 boxes. Out of these 250 boxes were found defective and stood rejected. Various documents have been filed in support of the reply. I have heard learned counsel for the respondent-company and asked him as to how he explained Ex. 1 and 2 which are dated 31. 7. 1989, the learned counsel could not explain them. A look at Ex. 1 will show that it was addressed by the respondent-company to the petitioner and it is clearly mentioned therein that the books of accounts of the company show a credit balance of Rs. 1,05,855. 70/-as on 31. 3. 1989. The details of transaction during the period from 1. 7. 1988 to 31. 3. 1989 have already been stated in the. statement of account which is Ex. 2 and it will appear from Ex. 2 that the aforesaid sum was due against the respondent-company. Anything prior to July 1989 to my mind is not relevant and it can be taken for the purposes of the disposal of the company petition that as on 31. 3. 1989, a sum of Rs. 1,05,855. 70/- was due against the respondent company to the petitioner which the respondent company failed to pay despite statutory notice and, therefore, is unable to pay its debts within the meaning of Sec. 433 (e) of the Act. I therefore, order that the company petition be admitted and advertised It was stated by Mr. Kasliwal learned counsel for the company that the respondent-company is in financial difficulties and in earlier petition u/s. 434 of the Act, this court has already granted facility of payment by instalments and requested that advertisement and publication be postponed and it may be kindly ordered that the amount be paid in instalments alongwith interest. This is, in my opinion, a good suggestion and I will take note of it while making the final order.
(3.) I, therefore, order that the company petition be admitted and advertised in Rajasthan Patrika, Times of India (English) published from Jaipur as well as in the Rajasthan Gazette. But, I hereby postpone the aforesaid advertisement/publication by six months. If within the period upto 30. 04. 1991 either the amount along with interest due at the rate of 18% per annum is paid or any settlement is arrived at by the petitioner, the company petition shall not be advertised and published and if within the aforesaid time, the amount is not paid and no settlement is arrived at, the company petition shall be advertised and published. At the request of Mr. Kasliwal, learned counsel, it is also ordered that the respondent-company shall be free to make payment of the aforesaid amount in six equal instalments along with interest and the first instalment shall be paid on or before 30. 04. 1991 and will continue to be paid thereafter by the last of the subsequent month.;