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TMI Blog1974 (3) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ears that the petitioning-creditor obtained an ex parte decree on January 5, 1973, in this court for a sum of Rs. 13,781.25 together with interest and interest on judgment at the rate of 6% per annum and costs as that of a defended suit until it was defended and thereafter as an undefended suit. The petitioning-creditor by a notice dated May 26, 1973, under section 434 of the Companies Act, 1956, through his solicitor demanded the payment of the said decretal amount together with interest and costs thereon as provided in the said decree. The company having failed to pay the said sum of the petitioning-creditor on December 5, 1973, the winding-up petition was presented which was made returnable on December 11, 1973. On the returnable date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 1956, and, in the absence, it cannot be said that the company is unable to pay its debts within the meaning of the said section. He has referred to the High Court Rules and also the Civil Procedure Code and the Rules, and AIR 1963 Cal. 104 ( sic ) regarding the execution of the decree and the Rules relating thereto. Further, he submitted that the company was in difficulties and now it is improving and has a bright future as the customers of the company are like I.C.I. (India) Private Ltd., Metal Box Company of India Private Ltd., Railways, Defence Department of the Government and various other concerns. The turnover of the company is also quite substantial and there is a prospect of the company earning huge profits in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a period of three weeks after serving the notice, the company should be deemed to be unable to pay its debts. He further submitted that there is no dispute as to the company having been served with notice under section 434 and in spite of such notice they have failed to pay the decretal amount together with costs and interest as demanded in the said notice. He further submitted that the company has taken time to pay off the debt and in fact the matter was put in the list for settlement. Ultimately, the company has not paid the amount. Subsequently, it made this application for stay only to delay the proceedings as long as possible. He further submitted that the claim of the petitioning-creditor, which ultimately resulted in the decree d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the service of the notice. If the company fails to satisfy the claim then he can present a winding-up petition. It is now well settled that the winding-up petition is an equitable mode of execution in respect of the claim of a creditor of a company : See Harinagar Sugar Mills Co. Ltd. v. M.W. Pradhan [1966] 36 Comp. Cas. 426 (SC). Therefore, I do not find any substance in the contention of Mr. Chatterjee that this application is not maintainable. Now, the only question is whether I should grant a stay in the facts and circumstances of this case. It appears that the company pursuant to an order of ad interim stay granted by me on the 11th of February, 1974, has deposited a sum of Rs. 3,000 with Mr. G.P. Lath, solicitor for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editor, and instalment of about Rs. 2,000 per month, in any event the entire balance sum of about Rs. 13,000 would be paid off by the 30th June, 1974. Therefore, it appears to me that in the facts and circumstances of the case the proper order should be that the winding-up petition be stayed up to the 30th of June, 1974. The petitioning-creditor's solicitor, Mr. G.P. Lath, is directed to pay the said sum of Rs. 3,000 lying deposited with him to the petitioning-creditor who will appropriate the same towards the decretal claim and when the matter was discussed in court, it appears that 60 G. Ms. may be the reasonable amount for the costs of both the suit and winding-up application and the present application which is to be paid by the company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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