S.Thangaraj, J:-
For the the petitioner - company has filed this petition under section 433 (e) read with section 434 (1) and 439 (1) (b) of the companies act, 1956, for winding up the respondent company.
2. The petitioner, m/s. Tdici limited, is a public limited company. The respondent, m/s. Neptune inflatables ltd. Is a private limited company incorporated under the provisions of the companies act, 1956. The respondent had received financial assistance from the petitioner - company as conditional loan to the tune of rs. 59 lakhs and subscription to 30, 000 equity shares of aggregate face value of rs. 30 lakhs at par. They entered into a conditional loan agreement on 7. 8. 1991. As on 14. 3. 1996, the respondent had to pay rs. 29. 30 lakhs and inspite of various demands, the respondent was unable to pay the said debt and so the petitioner has come forward with this petition.
3. The respondent has contended that the said amount was paid in excess and after due set off, the petitioner has to return rs. 11, 28, 900 and, therefore, the petition is not maintainable.
4. The financial assistance which the respondent had got from the petitioner is admitted by both parties. The counter - claim of the respondent that the petitioner has to pay rs. 11, 28, 900 has to be proved by the respondent for which annexure 'a' filed alongwith the counter was relied on by the respondent. Annexure 'a' has not been proved in a manner known to law and it is not an authenticated document, hence, on the basis of annexure 'a', we cannot believe the set off claimed by the respondent. During the correspondence between the parties, in the letter, dated 19. 12. 1994, it was agreed by the petitioner that they were prepared to accept a sum of rs. 70 lakhs towards full discharge of the principal amount of the conditional loan and normal loan and the amount should be paid on or before 15. 1. 1995. Even thereafter, the amount was not paid by the respondent and, therefore, in their letter, dated 20. 2. 1996, the petitioner had withdrawn the said offer. Further opportunities were also given to the respondent for payment in the letters, dated 4. 3. 96, 15. 3. 96 by the petitioner and the respondent by their letter, dated 25. 3. 1996 had undertaken to pay the first instalment of the amount by 31. 3. 1996 and when the said undertaking was also not honoured, the petitioner sent the statutory notice, dated 25. 3. 1996, claiming a sum of rs. 29. 30 lakhs. The respondent sent the notice and sent a reply dated 9. 4. 1996 for payment of the amount on instalments and in that letter, the respondent requested the petitioner to give the last opportunity before the petitioner decides further course of action. Even thereafter, the debt was not discharged. So, there is clear evidence to show that the respondent was unable to pay the debts in annexure 'e' filed alongwith the counter.
5. The bone of contention on the said the respondent is that the company court cannot decide the debt by going through the accounts between the parties and, therefore, it is not a fit case where the court can hold that the respondent is unable to pay its debts.
6. In united western bank ltd. , in re 1978 (48) cc 376 (bom) , the bombay high court held that where the debt is disputed, the court has to see, first, whether the dispute on the face of it is genuine or merely a cloak for the company's real inability to [pay] the just debts. Here, the correspondence shown above, would go to show that the dispute regarding the payment of debt is nothing but a cloak for the respondent company's inability to pay. Therefore, it is a fit case wherein there is ample document to show that the respondent company is unable to pay its debt.
7. It was again argued that though the court cannot presume the inability to pay the debt and there must be concrete evidence to prove the said facts, the various letters of undertaking sent by the respondent to pay the debt, especially, the last letter, dated 9. 4. 1996 would prove that the respondent is unable to pay its debts. Admission of debt voluntarily recorded by the respondent in their letter, would prove their inability to pay the debts. In the instant case, the court need not draw any presumption from the documents when the admission of liability and the inability to pay the debts are obvious from the very reading of the letter, dated 9. 4. 1996. Therefore, the various arguments advanced by the respondent even after the remand by the appellate court, are totally unacceptable. From the foregoing reasons, it is clear that the respondent company is unable to pay its debts. Hence, it is a fit case wherein advertisement of the petition can be effected as contemplated under rule 96 read with rule 24 of the companies (court) rules, 1959.
8. In the result, the petitioner is directed to effect advertisement of the petition to be published in one issue of english daily 'news today' and one issue of tamil daily 'makkal kural'.
9. For hearing on 6. 11. 1998.
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