ORDER
S.K. Keshote, J.
1. This is a petition on behalf of the creditor for winding up filed under Sections 433(e) & (f), 434 and 439 of the Companies Act, 1956 read with Rule 9 of the Companies (Court) Rules, 1959, of the respondent-company.
2. It is submitted that as per the orders of the respondent-company the petitioner-company had been supplying the material from time to time and along with the same, had been forwarding proper challans and bill giving details of the material and value thereof.
3. In para No. 9 of the petition it is stated that the respondent-company used the said material supplied by the petitioner-company but it failed to pay the value of the bills.
4. I find from the petition that the respondent-company issued certain cheques for Rs. 4,25,000; the petitioner-company presented the same but all were dishonoured. Undisputedly the petitioner-company has filed criminal complaints against the respondent-company for dishonouring of the cheques and the same are pending in the court of Metropolitan Magistrate, New Delhi.
5. The learned Counsel for the petitioner-company made reference to certain documents to show that the respondent-company has admitted its liability and accepted the debts. The sine qua non for winding-up of the company on the ground of its inability to pay the debts is that a statutory notice is duly delivered at its registered office.
6. In para No. 13 of the petition the petitioner-company averred as under:
13. That the petitioner through its counsel sent a legal notice dated 8th October, 2004 to the respondent-company by Regd. AD as well as UPC. The copy of the said legal notice, alongwith the acknowledgement card/ postal receipts are annexed herewith. The said legal notice was duly served upon the respondent-company, however, the respondent despite service of the said legal notice have failed and neglected to comply with the said legal notice. Hence, this petition.
7. The statutory notice has been stated to have sent by registered post AD as well as Under Postal Certificate. It has not been established by the petitioner that the statutory notices sent Under Postal Certificate and by registered post AD were delivered at the registered office of the respondent-company. Sending of notice Under Postal Certificate is very weak mode. As regards to the notice sent by registered post AD, it is suffice to say that acknowledgement Receipt has not been produced on the record.
The document at page No. 49 cannot be taken to be AD. Thus, the winding-up of the respondent-company on the ground provided under Section 433(e) of the Companies Act, 1956, is not tenable.
8. As regards to the ground given under Section 433(f) of the Companies Act, 1956, it is suffice to say that the respondent-company is not, as per the petitioner’s own case, disowning its liability. There may be financial difficulties to make the payment. So in the facts of this case on this ground also the respondent-company cannot be ordered to wind-up at this stage.
9. In the result, this petition fails and the same is dismissed. However, liberty is granted to the petitioner-company to file a fresh petition in case within fifteen days from the date of receipt of the notice by the respondent-company under Section 434 of the Companies Act, 1956, the debts are not cleared by it.
10. In view of this order, the application under Section 450 of the Companies Act, 1956 read with Rule 106 and Rule 9 of the Companies (Court) Rules, 1959 for appointment of Provisional Liquidator, filed along with this Company Petition, does not survive and the same is also dismissed.