TMI Blog1985 (4) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was ordered to be advertised, vide order of this court dated October 20, 1983, under rule 96 of the Rules. It was accordingly advertised by the then petitioner. M/s. Sarabhai Machinery, the present petitioner, filed C. A. No. 74 of 1984 under rules 101, 102 and 9 of the Companies (Court) Rules, 1959, in the main petition for substituting it as petitioner, in case M/s Delhi Cloth Mills abandoned the same. Subsequently, the respondent in view of the compromise arrived at between the parties, paid the amount to Delhi Cloth Mills and the latter agreed to get its petition dismissed. Consequently, M/s Sarabhai Machinery was allowed to be substituted as the petitioner, vide order dated May 24, 1984. Later, it was allowed to file the amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent on the grounds that as the petitioner did not execute the judgment of the Delhi High Court, the petition is not maintainable; that the petitioner did not amend the earlier petition but filed absolutely a new petition ; that the respondent intends to file an appeal against the judgment of the High Court ; that the petitioner was liable to pay stamp fee of Rs. 260, but it did not do so and that the petition was required to be filed within a period of three weeks but it was not filed within the said period. The first question for determination is whether without executing the judgment of the Delhi High Court, the present petition is maintainable. There is no dispute about the salient facts of the case. The petitioner served a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny is un able to pay its debts, the court shall take into account the contingent and prospective liabilities of the company " It is evident from the section that a company is deemed to be unable to pay its debts if any of the conditions in clauses ( a ) to ( c ) is satisfied. The case of the petitioner squarely falls in clause ( a ) of sub-section (1) of section 434 as it has served a demand notice on the company. A contention has been raised by Mr. Talwar that the petitioner has obtained a decree of the amount after service of the notice and, therefore, the present case is not covered by clause ( a ) but is covered by clause ( b ). He argues, the petitioner cannot take the benefit of clause ( b ) as it did not execute the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(1)( a ) is that there must be a creditor and to that creditor the company must be indebted in a sum exceeding Rs. 500 then due and that creditor must have served a notice on the company and the company had not complied with the demand within three weeks from the date of the service of the notice. Even a judgment debtor in respect of a money decree can be said to be indebted to the decree-holder, who would be a creditor. Consequently, in our opinion, there is no mutual exclusion between section 434(1)( a ) and 434(1)( b ) of the Act and there is a region common to both, which may be said to overlap. Hence we are of the opinion that even a decree-holder in respect of a money decree can institute proceedings, under section 434(1)( a ) if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is not entitled to file an application for winding-up. The fourth question that arises for decision is, whether the petitioner is liable to pay fresh court-fee on the amended petition. The learned counsel for the respondent has not drawn my attention to any provision of law under which a substituted party in a petition under sections 433, 434 and 439 is liable to pay fresh court-fee on the amended petition. Moreover, rule 102 of the Rules provides that the amended petition shall be treated as the petition for the winding-up of the company and shall be deemed to have been presented on the date on which the original petition was presented. After taking into consideration all the circumstances, I am of the view that the petitioner is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re than 10 years has elapsed but the payment has not been made by the respondent. During the pendency of the petition, the respondent had also filed a scheme. The court passed an order to convene a meeting of the unsecured creditors in order to obtain their approval, but for reasons best known to itself, the respondent did not deposit the requisite expenses and, therefore, the meeting for the said purpose could not be convened. Thus, it is evident that this contention has been raised by Mr. Talwar for the purpose of delaying the payment to the petitioner. Consequently, I reject the same. For the aforesaid reasons, I order that the company be wound up. The order be advertised within a period of 30 days by the petitioner in the English and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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