9911796707
TMI Blog2003 (5) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2 lakhs on January 12, 2001, thereby leaving a sum of Rs. 9,61,794.16 which was confirmed by the company on February 23, 2001. After such balance confirmation the company during the period March, 2001, to April, 2001, made diverse part payments aggregating to Rs. 2.32 lakhs leaving a balance sum of Rs. 7,29,794.16. The petitioner caused a statutory notice of demand served at the former registered office of the company and thereafter initiated the above winding up proceeding. In the affidavit-in-opposition the company contended that since the notice was not served at the registered office of the company the winding up petition was not maintainable and was liable to be dismissed. On the merits, it was contended in the affidavit that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the existence of the petitioner's claim. Mr. Banerjee submitted that since the admitted claims were not paid by the company it would be deemed that the company was insolvent and was unable to pay its debts and as such the petitioner was entitled to have an order of admission. In support of his contention Mr. Banerjee relied on the following decisions : (1) Pandam Tea Co. Ltd. v. Darjeeling Commercial Co. Ltd. [1977] 47 Comp. Cas. 15 (Cal.); (2) Manganese Ore (India) Ltd. v. Sandur Manganese and Iron Ores Ltd. [1999] 98 Comp. Cas. 755 (Kar.); (3) Ramdas and Co. v. Kitti Steels Ltd. [2001] 103 Comp. Cas. 199 (AP); (4)[2000] WBLR 256 (Cal.) ; (5)Unreported Division Bench decision of this court in the case of Jupiter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manganese Ore (India) Ltd. [2001] CLC 1715 (Kar.). To decide the issue let me first deal with the cases cited by the parties. (1) Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India [1954] 24 Comp. Cas. 507 (Cal.) : Unless there is a valid statutory notice the winding up petition is not maintainable. The Division Bench of this court also held that whether the substratum of the company is gone and the object with which it was formed has become impossible of further pursuit is usually the proper concern of only its shareholders and contributories, a creditor cannot properly be allowed to use it as a ground for breaking up the company unless by the disappearance of the substratum, the recovery of his debt has been imperilled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay debts. (5) Manganese Ore (India) Ltd. v. Sandur Manganese and Iron Ores Ltd. [1999] 98 Comp. Cas. 755 : A learned single judge of the Karnataka High Court held that since the notice was served on the administrative office and was passed on to the registered office, it was a sufficient notice under section 434 of the Companies Act, 1956. This decision of the learned single Bench was overruled by the Division Bench reported in Sandur Manganese and Iron Ores Ltd. v. Manganese Ore (India) Ltd. [2001] CLC 1715 (Kar.). Here also the Division Bench considered Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India [1954] 24 Comp. Cas. 507 (Cal.) and held that there was no proper service of notice required under section 434 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice however does not disentitle the petitioner to maintain the winding up petition provided, however, it can prove that the company is otherwise insolvent and if the order of winding up is not passed it would imperil the chance of recovery of the claim of the petitioner. To maintain a winding up petition a creditor has to show that he has a just debt due which the company is unable to pay. The company is deemed unable to pay in case notice under section 434 is given at the registered office of the company and the company has failed and neglected to pay such sum within 21 days from the date of receipt. Such presumption of insolvency is a rebuttable one and the company is entitled to rebut such presumption by raising a bona fide dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany was insolvent or was unable to pay its debts. It might be true that the erstwhile management was favourable to the petitioner. It from time to time paid diverse sums as and by way of part payment. It also acknowledged the debt by sending balance confirmation. Since the management had changed and since it was contended on behalf of the present management that the company had no records to verify the claim of the petitioner it was incumbent upon the petitioner to disclose further particulars in support of their claim. Similarly, since the company had denied receipt of the statutory notice at the registered office the petitioner should have amended his petition by incorporating sufficient materials to prove the case of insolvency. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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