TMI Blog1984 (11) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have, in the winding-up petition, claimed that an aggregate amount of Rs. 90,81071 was due and payable by the respondent company to them, being made up of the principal amount of Rs. 58,968 and interest thereon as indicated in the particulars of claim, exhibit 'A' to the petition. To the petition, the appellants had annexed correspondence between the parties consisting of the letter addressed to the respondent-company on behalf of the appellants by their attorneys which is a letter dated August 31, 1982, and the reply of the respondents which is one dated September 12, 1982. The principal amount claimed by the appellants (original petitioners) is in respect of value of 300 kgs. of a chemical 'Biodobydroxyquinoliner' which was ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry notice as to interest as also in the winding-up petition (exhibit 'A') was or could be held to be totally unjustified, if the other portion of the claim which is far in excess of Rs. 500 was held to be prima facie good, dismissal of the petition as well as the expression of the opinion that the statutory notice was improper were not correct in law. Under section 433 of the Companies Act, one of the grounds on which a company could be sought to be wound up by the court is when it is unable to pay its debts. Section 434 raises a presumption and provides that a company is deemed to be unable to pay its debts if a creditor to whom the company is indebted in a sum exceeding five hundred rupees has served a notice on the company requiring th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad because the creditor had demanded a sum of 628, and it appeared that he was entitled only to 411 7 section 9d. This argument has been decisively rejected by Lord Chelmsford L.C., speaking for the Bench, at p. 410 of the report. It has been observed that even if the creditor has made a demand upon the company for payment of more than what was due, that per se will not make the notice or the consequential winding-up order bad or invalid, provided that there was a debt in excess of 50 due to the creditor. Both the above decisions have been cited and followed by a single judge of the Calcutta High Court in Ofu Lynx Ltd. v. Simon Carves India Ltd., [1971] 41 Comp. Cas. 174; The learned single judge was considering the validity of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition and relegate the petitioners to claim the amount by a regular suit. However, he did not go into this aspect but chose to dispose of the winding-up petition by dismissing the same on an erroneous basis which we have earlier indicated. If that be so, the impugned order will be required to be set aside and the petition will now go back to the company judge for reconsideration of the position and to decide whether it is required to be admitted and whether further directions after admission are required to be given. In the result, the appeal is allowed. The impugned order dismissing the winding-up petition is set aside. The winding-up petition will stand restored to the company judge who will proceed with the same at the stage it w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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