9911796707
TMI Blog1975 (11) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and advanced by it to the appellant on a second charge of the assets of the company and the amount was a running loan from year to year shown in the balance-sheets of the company. The loan was acknowledged in the last balance-sheet of the company as on December 31, 1967, and was also otherwise acknowledged in writing by the appellant from time to time. No part of the loan was paid in spite of the notice under section 434 of the Act and, accordingly, the company should be wound up. This petition, being Company Petition No. 225 of 1970, was admitted by K.L. Roy J. on January 19, 1971, and necessary directions for advertisements were issued. The appellant took out judge's summons for permanent stay of the proceedings disputing the claim. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e loan was once stated to be a sum of Rs. 3,00,000, while at another place it was stated to be a running loan. There can be no dispute and it is an essential requirement of law that the requisite particulars of the indebtedness of the company on which the insolvency proceeding is initiated against such company should find place in the notice of demand under section 434 as also in the petition for winding up. Such particulars are necessary to enable the company to meet the claim of the petitioning-creditor. Absence of material and requisite particulars thereof will invalidate the petition for winding up of the company as in such proceedings there should be no bona fide dispute about the indebtedness of such company to the petitioning-cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the indebtedness was acknowledged in successive balance-sheets, lastly in the balance-sheet for the year 1967. There is no denial that there was any such acknowledgment in the balance-sheets and the plea of the bar of limitation accordingly cannot be sustained. It was further contended that at the material time there was an injunction by the Darieeling court restraining the respondent from proceeding in any action on the basis of the demands made in the notice of the solicitor of the respondent to the appellant. The application for winding-up was admitted on June 16, 1970 and came up for hearing on January 19, 1971, when the injunction order was produced before the court. Order for advertisement was passed on that date but the court st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 434, "....will only prevent the petitioner from getting the benefit of presumption as to the company's inability to pay its debts but the petitioner may prove such inability as a fact aliunde". The respondent before us, from the materials produced, has prima facie established the appellant's indebtedness to it as claimed and there is no averment or case by the appellant in the affidavits in support of the judge's summons or otherwise that the appellant at the material time was in a position to pay off or compound its debts. Further, it appears that the Darjeeling suit was dismissed for default on July 21, 1973. It was said that the suit has been restored but no paper in support was produced. For all these reasons we are unabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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