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Issues involved: Application u/s 439 of the Companies Act, 1956 for winding up the respondent-company.
Judgment Summary: Issue 1: Service of Notice and Non-Appearance of Respondent The petitioner filed a winding-up petition against the respondent-company, which was served notice but did not appear in court despite being duly informed through registered post. The court directed advertisement of the petition in newspapers as per the Companies (Court) Rules, 1959. The respondent continued to abstain from the proceedings. Issue 2: Default in Payment and Legal Notices The respondent-company failed to repay a financial accommodation received from the petitioner, leading to dishonored cheques and legal notices demanding payment. The respondent did not respond to these notices or make the required payments, prompting the petitioner to seek winding up of the company. Issue 3: Company's Inability to Pay Debts The petitioner argued that the respondent-company's inability to pay its debts was evident from the facts presented, meeting the criteria u/s 433(e) and 434 of the Companies Act, 1956. The court noted the uncontested nature of the petitioner's claims and the lack of response from the respondent. Issue 4: Maintainability of Winding-Up Petition The court considered the maintainability of the petition in light of a pending proceeding u/s 138 of the Negotiable Instruments Act, 1881. It was clarified that the two legal remedies were distinct, with the criminal proceeding not serving as an alternative to the civil action sought in the winding-up petition. Final Decision Based on the established facts and legal provisions, the court granted the petition for winding up the respondent-company under the relevant provisions of the Companies Act, 1956. Despite acknowledging the potential adverse effects on the company, the court found it necessary to order the winding up in light of the circumstances. No costs were awarded in this matter.
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