9911796707
TMI Blog1998 (11) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the parties, it would be appropriate to refer to the necessary facts giving rise to the present petition. The petitioner company, which is incorporated under the provisions of the Act, with its registered office at 307, Ajit Sen Bhawan, 13, Crooked Lane, Calcutta is primarily involved in the business of financing. Of course, under the objects of the company, the company also deals in the products other than merely financing. On 8-3-1995, the petitioner-company made an intercorporate deposit of Rs. 50,00,000 with the respondent-company for one month bearing interest at the rate of 24 per cent per annum. The amount was deposited by means of cheque No. 932775, dated 8-3-1995 drawn on Punjab National Bank, Karol Bagh, New Delhi. As the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued to the respondent to show cause why the petition be not admitted. The respondent-company put in appearance and filed the reply to oppose the petition. 5. It was stated that no statutory notice under section 434, was served upon the respondent-company and the notice did not satisfy the basic ingredients of section 434. On the merits, it was stated that no interest was payable, though receipt of Rs. 50 lakhs was admitted, as stated by the petitioner of this petition. In fact, the liability of more than Rs. 7 lakhs was admitted by the respondent-company but it stated that it had supplied Black Goat Nappa to the petitioner vide invoices dated 18-8-1995. Copies of the notices have been annexed to the reply as Annexures R-1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been supplied and prima facie, the respondent-company has failed to show any proof of supply or receipt of the material. Creation of Annexures R-1 and R-2 in their own favour would be of no alternate to the respondent-company to show discharge of a valid and admitted due debt. It was a finance transaction where admittedly incorporate deposit was made. The petitioner-company has specifically disputed the receipt of the said material. A specific affidavit was filed in this regard stating they are dealing with the finance company. It has been specifically averred that the petitioner-company is not a trading concern and is only engaged in the business of finance and lease. They never placed any order nor did receive the goods as stated in Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for winding up. In paragraph 6 of the notice, it has been specifically stated that in the event of default and failure to pay the petitioner-company, the petitioner-company would be constrained to take appropriate legal proceedings at the risk and responsibility and costs of the respondent-company. The petition for winding up is nothing but a legal proceeding. The notice dated 17-5-1997, was received by the respondent-company. Thereafter, the petition for winding up has been presented in the Registry of this court on 29-7-1997, i.e., much after the expiry of the period of three weeks from the date of the notice and its service. 10. It is a settled principle of law that mere non-mentioning of three weeks in the notice would not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he satisfaction of the said loan, should lead to an adverse inference against the respondent-company. 13. For the reasons aforestated, I am satisfied that the petitioner-company has made out a clear case, which remains unrebutted except for making vague and bald allegation of denial. In any case, the respondent-company owes more than Rs. 7 lakhs to the petitioner-company has failed to pay it all this time and has not offered repayment thereafter even during the pendency of this petition for a period of more than one year. The result is that the respondent-company has failed and is unable to pay its admitted debts to the petitioner-company and as such the provisions of sections 433 and 434, are fully attracted in the facts and circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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