TMI Blog2005 (7) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The learned Company Judge dismissed the application on the ground that (1) there was no statutory notice and (2) respondent-company bona fide disputed the claim. 2. It is the case of the appellant that he is a financial management consultant and sole proprietor of G.K. Financial and Management Consultancy Services. As per Annexure A extracts of the minutes/Board resolution of the Vth meeting of the Board of Directors, the company decided to avail the specialised services of the appellant for obtaining share capital, bank loan, NRI deposits etc. Rate of remuneration was also mentioned in Annexure A. By Annexure B letter dated 5-1-1994, appellant requested the respondent/company regarding settlement of the services. We quote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for winding up of the company without issuing any reminder or further notice. Section 433( e ) of the Act provides as follows : "433. Circumstances in which company may be wound up by Tribunal. A company may be wound up by the Tribunal, - ( a )to ( d )****** ( e )if the company is unable to pay its debts;" Section 434(1)( a ) reads as follows : "434. Company when deemed unable to pay its debts . (1) A company shall be deemed to be unable to pay its debts ( a )if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that payment must be made. This Court in K. Suresh Shenoy v. Cochin Stock Exchange Ltd. [1989] 65 Comp. Cas. 240 held that though in the notice sought to be given under section 434(1)( a ) it is not necessary that there should be an indication that it is given under section 434(1)( a ), there should be some indication given to the company that in case of non-compliance with the terms of the notice or demand, the creditor will take steps for winding up of the company. A contrary view was expressed by the Delhi High Court in Devendra Kumar Jain v. Polar Forgings Tools Ltd. [1985] 84 Comp. Cas. 766 . There it was held that it is not necessary that the notice should carry a wording that if the demand is not met, a winding up petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dduced by the appellant to show that the company is unable to pay its debts. In Annexure C, no time limit was also fixed for making payment. In this connection, we also refer to the decision of the Calcutta High Court in Pancham Tea Co. Ltd. v. Darjeeling Commercial Co. Ltd. [1977] 47 Comp. Cas. 15 (Cal.). 4. In order to raise a presumption of inability to pay, mere non-payment of the demand amount, despite service statutory notice, is not enough. It is the burden of the petitioner to show that the company has omitted to pay without reasonable cause or winding up shall be refused if there is bona fide and reasonable dispute as to substantial part of the debt on which the petition is based. When a debtor company bona fide believe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not disputing Annexure A decision of the Board of Directors. But, the defence is that he has not done any useful work in getting the above service. The bank loan obtained from the Federal Bank was sanctioned even before Annexure A Board resolution. Ext. R2 would show that prima facie no amount is due to the petitioner due to the transactions in connection with M/s. Hathway Investments Private Limited. We are not going to conduct a threadbare discussion with regard to the correctness of the claims of the petitioner and counter-claims filed by the company. We are only stating that bona fide and substantial objections to the bill were raised by the company and intimated to the claimant as soon as it received Annexure C invoice. Annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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