JAIN, J. - (1.) THIS is a petition under Section 439 read with Section 433 (e) and (f), Companies Act, 1956 for winding-up of the non-petitioner-Company.
(2.) THE petitioner's case is that it sold one plain paper copier machine in January, 1987. One post dated cheque for Rs. 10,000/- was given and the remaining amount was paid in cash. After the due date, the cheque was presented to the Bank but it was returned with the remark "refer to drawer". THE non-petitioner-Company was repeatedly requested to make payment of the balance amount of Rs. 10,000/- but it has not paid it despite admitting its liability for its payment. It is conclusive proof of insolvency. In its reply, the non-petitioner-Company admits to have purchased a plain paper copier machine from the petitioner-Company, to have issued a post dated cheque for the balance amount of Rs. 10,000/- and the said cheque has been returned with the remark "refer to drawer". Its case is that the petitioner-Company did not send excise gate pass and as a result thereof the purchaser of the said machine had not made payment to it. It has also been averred in the reply that if the petitioner supplies the required excise gate pass, the non-petitioner-Company would immediately make the payment to the petitioner-Company. It has also been averred that the non-petitioner Company issued instruction to its Bank for stopping payment of the said cheque as the petitioner failed to perform its part of the agreement i. e. to issue excise gate pass and as such the non-petitioner was entitled to withhold the payment. In support of the Company petition, the petitioner has enclosed photostat copies of the letters issued by it to the non-petitioner and reply received therefrom. Letter dated March 24, 1988 (Annexure 3) has been written by the petitioner-Company to the non-petitioner-Company. Its relevant portion runs as under : - "the Excise Gate Pass, the number of which has already been given on your invoice copy, would be sent to you on receipt of the draft and declaration form. " In its reply dated April 1, 1988 (Annexure 4), the non- petitioner has stated: "we once again request you to kindly furnish the Original Excise Gate Pass on receipt of this letter. On receipt of the Excise Gate Pass, we will immediately send you the payment along with the S. T. declaration form. " The petitioner served a notice dated October 29,1988 (Annexure 5/11) upon the non-petitioner-Company through Shri Jitendra Chawla Advocate, New Delhi. Its para 4 runs as under : - "that your repeatedly asking for a excise gate pass against P. P. C. is unwarranted and no such excise gate passes are liable to be given to any party who purchases the machine from my clients under the law. "
(3.) ANOTHER notice dated May 23, 1989 (Annexure 5/12) was served upon the non-petitioner-Company. Its para 4 runs as under : - "that your repeatedly asking for an Excise Gate Pass is unwarranted and illegal and no such Excise Gate Passes are liable to be given to any party. If you still desire to verify such excise gate pass in respect of your machine, you may send any of your representative to see and verify the said Excise Gate Pass in the records of the Company, and if no representation shall be given within seven days to verify the same it shall be presumed that you have verified the same and no such further verification will be and/or is required by you. " The non-petitioner-Company has filed a photostat copy of the letter dated October 15,1991 addressed to it by Assam (Trade) Agencies, Gauhati. Its Ist para runs as under: - "with reference to your letter No. 2315 dt. 7. 9. 91 regarding payment for supply of photo-copier selex-50, please note that till today we have not yet received the payment from Director Plementry Education Gauhati for supply of Photo Copier Selex 50. Due to non receipt of Excise Gate Pass, Department has refused to make the payment for want of Excise Gate Pass. " It is thus clear that the payment of the said amount is not being made by the non-petitioner-Company as the petitioner-Company is not furnishing Excise Gate Pass of the Plain Paper Copier Machine sold to the non-petitioner-Company. These facts and circumstances do not show that the non-petitioner Company is unable to pay its debt. These facts and circumstances do not warrant the winding up of the Company. As such the Company-petition deserves to be dismissed. Consequently, the Company petition is dismissed. No order as to costs.;