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2018 (3) TMI 869 - HC - Companies LawWinding up petition - non reply to statutory notice - commercial insolvency - Held that:- The submissions that the claim under petition was not a 'debt' and petitioner is not a creditor of the company but the claim is for 'damages' and there was no ascertained liability which can be proved only in a Civil Court, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, as satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of ₹ 6,07,00,000/ payable by respondent. Respondent company did not reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.'B') from respondent-company to petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen. Thus as each of the companies are unable to discharge their debts, are commercially insolvent and require to be wound up. Company petitions allowed
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