S.J.MUKHOPADHAYA, J. - (1.) THIS application under Section 433(e), 433(f), Section 434. Section 439(1)(c) and Section 450 of the Companies Act. 1956 has been preferred by petitioner, Alok Coal Agencies Limited (for short Company), a Company limited by shares under the Companies Act, 1956, wherein prayer has been made to wind up the O.P. No. 1, M/s. Indian Colour Sheets Limited (for short M/s. ICSL), to appoint official liquidator to take charge of all assets, properties and all other movableand immovable assets etc. of the O.P. No. 1, M/s. ICSL and to pay the dues of the Petitioner -Company by sell or otherwise of the property and assets of the said O.P. No. 1, M/s. ICSL.
(2.) INITIALLY , M/s. Indian Colour Sheets Limited was only impleaded as O.P.party to the application. Subsequently, a petition for intervention was filed on be half of Bihar State Industrial Development Corporation Limited (for short BSIDC) to implead it as O.P. No. 2. According to petitioner -company, the O.P. No. 1, M/s. ICSL approached the petitioner -company for friendly accommodation and the petitioner -company advanced friendly loan to the O.P. No. 1, M/s. ICSL amounting to Rs. 10,48.285.62 paise (Rupees ten lac forty eight thousand two hundred eighty five and sixty two paise only), as detailed in Schedule -A to the application. The petitioner -company claimed that inspite of repeated requests and demand notice dated 22nd June, 1998 (Annexure -1) followed by lawyer's notice dated 12th July, 1998 (Annexure -2), the O.P. No. 1, M/s. ICSL failed and neglected to pay the said amount of Rs. 10,48,285.62 paise. Further case of petitioner -company is that the O.P. No. 1, M/s. ICSL vide its reply dated 28th July, 1998 (Annexure -3) informed that it was unable to pay the dues of the petitioner -company. The petitioner -company further learnt that the O.P. No. 1, M/s. ICSL has no means and is unable to pay the said dues of the petitioner -company and as such the O.P. No. 1 M/s. ICSL has become commercially insolvent. The petitioner -company claimed to be entitled for interest @ 24% per annum as the O.P. No. 1 wrongly and illegally withheld the legitimate dues of the petitioner - company and made -the following claim : 'SCHEDULE -A Sl. No.Financial yearAmount Rs.1.1991 - 19926.38.223.362.1992 - 19932,38.987.523.1993 - 199496,022.334.1994 - 1995( -) 22.577.075.1995 - 199647,629.486.1996 - 199750,000.00 Sub Total10,48,285.62Interest @ 24% upto 31.3.199814,38,113.00Interest @ 24% from 1.4.1998 to 30.11.19994.19,314.00 Total29,05,712.62 (Rupees Twenty nine lac five thousand seven hundred twelve and sixty two paise only)'
(3.) A purported counter affidavit was filed on behalf of O.R No. 1. M/s. ICSL accepting the claim with plea that due to financial crisis, the O.R No. 1, M/s. ICSL could not pay the dues of the petitioner -company as was informed by its letter dated 28th July. 1998. Further plea has been taken that the O.R No. 1, M/s. ICSL never refused to pay the dues of the petitioner -company and requested to wait for sometime. The O.R No. 1, M/s. ICSL is a joint venture Company of Bihar State Industrial Development Corporation Limited (O.R No. 2) and M/s. Hi Tech Alloys Pvt. Ltd. This has been pleaded in the purported counter affidavit filed on behalf of O.R No. 1 as also in the petition for intervention filed by O.R No. 2, BSIDC. The investment of O.R No. 2, BSIDC is about 26% of the total project cost of O.R No. 1, M/s. ICSL which is about Rs. 2.20 crore. Other shares held by M/s. Hi Tech Alloys Pvt. Ltd. is 25%, CMI, Belgium Cockrail of USA 20% and public 29%.;