DHOOTPAPESHWAR SALES CORPORATION PRIVATE LIMITED Vs. STAT

JUDGEMENT

(1.) ANNA Balwant Dunang, the petitioner, has filed this petition for winding up of Dhootpapeshwar Sales Corporation Private Ltd. The ground on which the winding-up petition is presented is that the company is unable to pay its debt and it is otherwise just and equitable that the company should be wound up.

(2.) THE petitioner had filed a suit being Suit No. 339 of 1970 in the city civil court at Bombay against the company. In that suit, on April 30, 1970, a decree on admission was passed in favour of the petitioner and against the company for Rs. 15,872 and interest and costs. Under the decree, the decretal amount was payable by monthly instalments of Rs. 1,000 each, first of such instalments was payable by the company on or before 10th July, 1970, and subsequently monthly instalments were payable on or before the 10th day of each and every succeeding month until the whole of the amount due and payable under the decree was paid in full. There was a default clause contained in the decree and under the default clause, if any two instalments remained unpaid on the due date, the whole amount then due under the decree became forthwith payable. None of the instalments was paid by the company on the due date with the result that upon default of payment of two instalments the whole amount then due under the decree became payable. By the petitioner's attorney's notice dated November 23, 1970, the petitioner gave notice under section 434 of the Companies Act, 1956, calling upon the company to pay the amount due as stated in the said notice. It was stated in the said notice that if the requisition contained therein was not complied with by the company, the petitioner would adopt winding-up proceedings against the company as he may be advised.

(3.) UNDER section 433 of the Companies Act, a company may be wound up, inter alia, if the company is unable to pay its debts or if the courts is of opinion that it is just and equitable that the company should be wound up. Sub-section (1) of section 434 provides for cases when a company is deemed to be unable to pay its debts. Under clause (a) of that sub-section, if a creditor, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered as its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor, the company shall be deemed to be unable to pay its debts. There is no controversy between the parties that a statutory notice as required under the above provisions was served upon the company by registered post and within three weeks of the receipt thereof, the company has failed and neglected to pay the debt. The petitioning creditor is a creditor of the company in the sum of Rs. 15,194 and in spite of a statutory notice being given to the company as provided by section 434 (1) (a) of the Companies Act, the company has failed and neglected to pay the debt due to him. Under the circumstances, it is clearly established that the company is unable to pay its debts.