1978 (8) TMI 152 - HC - Companies Law

Summary

Issues Involved:
1. Creditor's petition for winding up of the company.
2. Alleged debt owed by the company to the petitioner.
3. Bona fide dispute of the debt by the company.
4. Validity and waiver of the notice under section 434 of the Companies Act, 1956.

Detailed Analysis:

1. Creditor's Petition for Winding Up of the Company:
The petitioner, a creditor, filed a petition for winding up of the company under the Companies Act, 1956, alleging that the company owed it a substantial sum of money. The company was incorporated on 28th July 1956, with an authorized capital of Rs. 10,00,000 and a paid-up capital of Rs. 8,91,000. The petitioner supplied motors/engines to the company, and the accounts were maintained on a running and continuous basis.

2. Alleged Debt Owed by the Company to the Petitioner:
The petitioner claimed that after adjustments, the company owed Rs. 7,15,879.55. A meeting on 19th June 1975 resulted in an agreement that Rs. 7,65,879.55 was due, evidenced by a signed statement of account (Annexure B). The petitioner also agreed to take back certain stocks to adjust the dues (Annexure C). A notice under section 434 was served on 20th October 1976, demanding Rs. 13,16,547 inclusive of interest (Annexure D).

3. Bona Fide Dispute of the Debt by the Company:
The company opposed the petition, citing a Supreme Court observation that a prima facie case must be made before admitting a winding-up petition. The company denied the petitioner's claims, stating that only Rs. 16,762.04 was due, which it attempted to pay but was refused by the petitioner's local office. The company also claimed that the petitioner was responsible for collecting dues from dealers and that credit notes worth Rs. 3,61,813.98 were not adjusted.

The petitioner, in its supplementary affidavit, provided evidence of the company's admission of the debt (Annexure B-1 and B-2). The court noted that the petitioner had made a prima facie case for the dues outstanding against the dealers, as the company had committed to settling these dues by December 1977. However, the company failed to provide proof of the credit notes it claimed.

4. Validity and Waiver of the Notice Under Section 434 of the Companies Act, 1956:
The company argued that the debt was not payable at the time the notice was served, as per the agreement, the amount was to be paid by December 1977. The court agreed, stating that the company could not be said to have neglected to pay the debt within the statutory period, as the payment was postponed.

The company also contended that the notice under section 434 was waived by a subsequent letter from the petitioner dated 13th December 1976 (Annexure F), which demanded a reduced amount and allowed a fortnight for payment. The court found that this letter superseded the initial notice, and thus, no winding-up proceeding could be maintained on the basis of the original notice.

Conclusion:
The court rejected the petition for winding up, concluding that the company had not neglected to pay the debt as per the agreed terms and that the notice under section 434 had been waived. The parties were ordered to bear their own costs.