TMI Blog1974 (8) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... lades and other goods made by the petitioner, the company was indebted to the petitioner in a sum of Rs. 1,167.43 on account of principal and interest under the ledger maintained by the petitioner. On February 24, 1973, the petitioner issued a registered notice demanding payment of this debt and it was accepted by the company on February 28, 1973. Thereafter, the company paid the petitioner Rs. 100 on March 14, 1973. The petitioner understands that large amounts are due by the company by way of arrears of employer's share of contribution of provident fund sums as well as employer's share of E.S.I, payable to the Employees' State Insurance Corporation. It is also understood that a suit had been filed by the Corporation Bank Ltd., Calicut, ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring any suit against the company. The financial position of the company is very sound and it is very solvent and the petitioner has been moved by some improper motives to file the petition without any merits. The company has no intention either to evade or avoid payment; in fact the company is prepared to pay the balance due to the petitioner in a lump. To this the petitioner filed a reply-affidavit on March 26, 1974, that the payments mentioned in the counter-affidavit which have not been given in the affidavit were subsequent to the petition. The Corporation Bank, Kozhikode, had filed O.S. No. 94 of 1972 on the file of the Sub-court, Kozhikode, for Rs. 68,704.39 against the company for recovery of a debt and the statement to the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1972 of the Sub-court, Kozhikode, instituted by the Corporation Bank Ltd. against the company and its directors for recovery of Rs. 68,703.39, being the balance due under a loan of Rs. 75,000, granted on August 8, 1968. Exhibit P-2 is a copy of the petitioner's ledger for 1971-72 in the name of the company, showing a balance of Rs. 1,087.43 and exhibit P-3 is a copy of the notice issued by the petitioner to the company demanding the above amount with interest at 12% and Rs. 1.85, being the cost of issuing the notice. Exhibits D-l to D-4 are receipts issued by the petitioner to the company acknowledging receipt of Rs. 100 on March 14, 1973, Rs. 40 on March 19, 1973, Rs. 50 on October 3, 1973, and Rs. 50 on December 29, 1973, respectively. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia v. Lakshmi Ratan Cotton Mills Co. Ltd. [1970] 40 Comp Cas 259 ; AIR 1970 All 452 (All.) , which arose on a creditor's petition to wind-up the respondent-company, it was held : "The fact that the company is unable to pay its debts, does not necessarily entitle the court to order winding-up of the company as the discretion to pass such an order, even in the case of the inability of a company to pay its debts, is by section 433 vested in the court. But the discretion has to be exercised judicially. This means that it is only where the balance of equities is shown by a petitioner to tilt appreciably in favour of a winding-up order that it will be made ex debito justitiae. It is in this special sense that a petitioner relying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of accounts and no contract to pay interest. Subsequent to the receipt of notice, the company has paid Rs. 240 to the petitioner Rs. 140, before and Rs. 100, after the petition. The company's counter-affidavit dated June 21, 1964, asserts that a cheque for the full balance was tendered to the petitioner's counsel on June 16, 1974. This was not contested. At every date of hearing, counsel for the company submitted that he had the money with him and was prepared to pay it to the petitioner's counsel but the latter represented that his instruction was not to receive it. Even in the first counter-affidavit, the company offered to pay the amount in a lump. In this situation the company can scarcely be said to be unable to pay the petitioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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