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2014 (3) TMI 923 - BOMBAY HIGH COURTWinding up petition - failure to pay debts - respondent contended that, this petition is not maintainable as the Gati has put the decree into execution, and since the decree has not yet been returned unsatisfied, the petition must be dismissed in limine. - Held that:- A petitioning-creditor with a decree need not put it into execution before bringing a winding up petition. - He can proceed either under Section 434(1)(b) or, having served a notice, move against the debtor-company under Section 434(1)(a). Whether claim is time barred - Held that:- The petition is based entirely on the decretal debt, not the underlying cause of action. Limitation would be governed not by Article 137 but by Article 136, and that provides a period of 12 years from the date when the decree is enforceable. - It is also settled that winding up is an equitable mode of execution. There is no manner of doubt that Atcom is commercially insolvent. Not only must it be deemed to be unable to pay its debts on account of its failure to comply with the demand in the statutory notice, but its reply contains vital admissions of financial inability, commercial insolvency, its lack of income and that it is doing no business. Gati has a valid decree in its favour. Petition admitted - The Official Liquidator is appointed Provisional Liquidator of the respondent company. - Decided in favor of petitioner.
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