1. The petitioner, the UCO Bank, has filed this petition for winding up of the respondent-company, M/s. Achal Alloys Pvt. Ltd., Ujjain, under Sections 433 and 434 of the Companies Act, 1956. The petitioner, the United Commercial Bank, is a nationalised bank having its branch at Maxi Road, Ujjain. The company is also located in Maxi Road, Ujjain. The company was incorporated on July 1, 1983, under the Companies Act, 1956. The registered office of the company is also at 7, Industrial Estate, Maxi Road, Ujjain.
2. It is not disputed that the petitioner rendered the company financial assistance and also the facility of grant of overdraft and by purchase of cheques to be encashed from the company's account in the Union Bank of India, branch at Siyaganj, Indore.
3. According to the petitioner, some of the bills (cheques) of the respondent in the bills purchase account were dishonoured on presentation, vide annexure A. The bills purchase account of the company shows a debit of Rs. 10,50,000 plus interest at the rate of 20 per cent. per annum from January 25, 1990. Likewise the company's current account shows a debit balance of Rs. 13,17,550 (inclusive of interest) debited up to December 25, 1990. Thus, the company is indebted to the petitioner in the sum of Rs. 23,67,550 plus interest thereon. The statement of accounts is filed as annexure B. The company, by its letter dated February 8, 1990, asked the petitioner to adjust the outstanding account, vide annexure "C". Thereafter, letters dated March 8, 1990, and March 14, 1990, were also written. In reply to the aforesaid letters the company sent a letter dated March 26, 1990, acknowledging the debt and promised to clear off some of the balance amount within 4 to 6 months. The copy of the letter of the company is annexure "E". But, the company failed to keep the promise. Therefore, the bank sent a notice to the company through their advocate on July 16, 1990, but to no effect.
4. Thereupon, on March 25, 1991, a notice under Section 434 of the Companies Act was sent by the petitioner to the company, calling upon the company to pay the petitioner the sum of Rs. 10,50,000 plus interest for appropriating in the bill purchase account as well as Rs. 13,17,550 plus future interest in the company's current account totalling Rs. 23,67,550 plus future interest thereon. The company, however, failed and neglected to pay the debts of the petitioner. As such, in view of the fact that the company has failed to pay the acknowledged debt despite the statutory notice, it entitles the petitioner to seek liquidation of the company.
5. The petition has been opposed by the company on the ground that it is not tenable under the law because there is a bona fide dispute as to the liability to pay the dues as mentioned in the petition under reply. Since there is a dispute, it cannot be said that there is any negligence to pay the same under the relevant provisions of the Companies Act. The petition is based absolutely on false and baseless allegations. Material information has been withheld by the bank. The bank had actually assured the company to grant credit facility to the tune of Rs. 75. lakhs and a proposal was accordingly made to the sanctioning authority. Acting on this aforesaid assurance the company switched over from its regular banker, the State Bank of Bikaner and Jaipur, to the petitioner. Initially, the bank released some funds in a phased way. The bank stopped the payment of the cheques issued by the respondent after February 10, 1990, onwards. On enquiry it was informed by the petitioner that the sanction of the limit in the sum of Rs. 75 lakhs has been declined. Multifarious pleas have also been raised to show that a bona fide dispute exists between the bank and the company and, therefore, the bank is now estopped from stopping the respondent from operating under the said limit for which an assurance has been given.
6. Learned counsel for the petitioner, Shri Chaphekar, has argued that the amount of debt is undisputed and the case of bona fide dispute as raised by the company is not borne out by any documents from which it can be presumed that there is some bona fide dispute between the parties.
7. On the other hand, learned counsel for the company, Shri Mahesh-wari, states that it is a case wherein the bank has resiled from its earlier promise causing loss to the company and, therefore, the company is entitled to claim compensation from the bank, The amount which is shown to be outstanding has also been disputed. Authorities have been cited by both the parties in support of their respective contentions.
8. After going through the. documents and considering the arguments advanced by the parties, I am of the opinion that prima facie it is a fit case in favour of the bank because it is not that the amount has not been acknowledged by the company and a statutory notice is in existence. It is also not disputed that the company has failed to pay the outstanding amount of debt after the receipt of the statutory notice. The respective contentions raised by the parties based on various judgments of the High Courts and the Supreme Court are about the question of winding up which shall be considered when the matter of winding up is taken up by this court. However, at this stage it is a fit case which deserves admission.
9. Therefore, the company petition filed by the bank is admitted. Further action in the matter in accordance with the Companies (Court) Rules, 1959, be taken as a result of the admission of this petition. List this case before the court on July 9, 1993.
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