2003 (5) TMI 422

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..... on its inability to pay debt to the petitioner. 3. In para No. 5 of the petition it is stated that the respondent company has purchased the soda ash from the petitioner from time to time and have been making the part payment. The respondent company after admitting its liability to pay the debts, had sent its duly signed balance sheet to the petitioner. This balance sheet is on record as Annexure-1, which is as under, K.V. ASSOCIATES PVT. LTD., CHANDIGARH Statement of Account for Matharu Chemicals Industries From 1-4-2001 to 14-12-2001 Date Description Debit Credit Balance 1-4-2001 To opening balance 356525.92 356525.92 DB 4-5-2001 By cash .....

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..... fective remedy is available to the petitioner of filing of the summary suit under Order 37 of the C.P.C. but there the court fees is to be paid. In the facts of this case filing of this winding-up petition is nothing but an attempt on the part of the petitioner to recover this amount under the threat thereof. This way the petitioner needs not to pay the courts fees and recover the money. 5. Leaving apart that this winding-up petition is not maintainable as the petitioner has not produced any proof that the alleged legal notice sent under section 434 of the Act, 1956 has been received by the respon dent company. Section 433 of the Act, 1956 provides the circumstances in which a Company may be wound-up by the Court. A company may be wound .....

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..... evidence that this notice has been sent to the respondent by registered post AD. In case this notice would have been sent by the registered post AD, the documentary evidence would have been available with the petitioner i.e., the postal receipt as well as the acknowledgement receipt. Both these documents have not been produced. Thus for non- production of these two documents, it can reasonably be inferred that this notice was not sent by registered post AD and secondly it was not served upon the respondent company. The petition is lacking in basic requirement of the maintainability under clause ( e ) of section 433 of the Act, 1956. Sine qua non for the maintainability of the winding-up petition on the ground provided under clause ( e .....

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