TMI Blog1993 (4) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent-company and supply that coal to the respondent. In the year 1983, the respondent-company ran into financial difficulties and its factory was closed down. The petitioner on the date of the closure of the factory had to recover from the respondent a sum of Rs. 1,94,487.70 whereon the petitioner had claimed interest at 22 per cent. per annum which till March 31, 1986, came to Rs. 98,328.58. Before the closure of the factory the petitioner approached the respondent for the payment of its dues and as a consequence of certain telephonic discussions, the respondent wrote to the petitioner on March 2, 1984, reading as under : "This refers to our today's telephonic talk regarding payment of coal dues of about Rs. 2.30 lakhs. Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for coal nor could return it to the petitioner. The petitioner again wrote on July 30, 1985, calling upon the respondent to make the payment. This letter was duly acknowledged by the respondent, vide its letter of August 3, 1985, wherein they once again expressed their helplessness and pointed out "once the mill reopens and starts functioning, action will be taken to send you payment. Kindly bear with us till then." Following this, a notice under section 434 of the Companies Act was sent by the petitioner to respondent on August 29, 1986. No payment was made in response to the said notice and in fact the respondent took a complete somersault and for the first time the claim in the petition was disputed in the reply to the notice, vide lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay once the factory starts functioning, thus, reverting to the earlier position. Therefore, I do not find any merit in this plea. In any event, no such plea was ever raised in reply to the notice under section 434 of the Companies Act. In fact this plea was for the first time taken in reply to the show-cause notice only. The only plea and that too raised for the first time in reply to the notice, was that of abandonment of claim for money by the petitioner by virtue of his having made an offer to take back the goods without adverting to the respondents assurances to pay even after its failure to return the goods. In other words, the plea of the respondent appears to be that whether or not the goods can be returned, the respondent stoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court in seisin of the winding up application will stay the winding up proceedings on that ground alone, there would have been a provision to that effect in the Companies Act, 1956. However, there is no such provision because a winding up proceeding is not merely for the benefit of the petitioner but of all its shareholders, creditors or contributories, therefore, merely because a creditor has filed a suit against the company the winding up proceedings cannot be stayed." The learned single judge has placed reliance on the case of Amalgamated Commercial Traders ( P. ) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp. Cas. 456, where the Hon'ble Supreme Court had held that (page 463): "A petition presented ostensibly for a winding up or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion, I hold that a prima facie case of the respondent's inability to pay its debt has been made out by the petitioner. Another factor which cannot be lost sight of while considering the petition for winding up proceedings is that the respondent-company has not been doing any business ever since 1985. Its factory is lying closed and admittedly the officers of the respondent-company have no access to the factory premises. In the light of the above discussion, I admit the petition and order a citation to be published in the dailies Statesman, Jansatta and Delhi Gazette for September 27, 1993. It will be a further condition of this order that if the amount is paid by the respondent within nine weeks from today the citation will no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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