ORDER
P. Sathasivam, J.
1. The petitioner firm has filed the above company petition for winding up of the respondent’s company under Section 433(a)(c), read with Sections 434 and 439(1)(b) of the Companies Act, 1956, and Rule 95 of the Companies (Court) Rules, 1959.
2. The case of the petitioner is briefly stated hereunder :
2.1 According to the petitioner, they are the partnership firm registered under the Partnership Act, 1956, and having office at Chennai-1. The respondent, Best and Crompton Engineering Ltd., was incorporated under the Companies Act, 1956 as a limited company. The main object of the company for which the company was established is to carry on among other business of alloy steel raw materials and other object set forth in the memorandum of association. The respondent company purchased alloy steel raw materials from the petitioner company through invoices,
Invoice No. Date Amount
11E/MDS/438 17-1-1992 2 9,086.11
11E/MDS/528 9-3-1992 93,493.25
11E/MDS/51 12-5-1992 93,640.05
2,16,219.41
for their use in business.
3. As ordered, the materials were supplied, and the same was acknowledged by the respondent’s company. There is an outstanding amount of Rs. 2,16,219.41 payable by the respondent company. In spite of several requests and reminders, the respondent company failed and neglected to settle the amount. Therefore, [the petitioner] issued a statutory notice dated 5-9-2001, calling upon the respondent company to pay Rs. 2,16,219.41 within 21 days from the date of receipt of the said notice. Though the respondent company acknowledged the receipt of the notice, [it] has neither come forward to pay the outstanding amount nor send any reply. However, the managing director of the company had orally requested time for making the payments, and the same had not been complied with till date. In the circumstances, it is clear that the respondent is unable to pay its debts and has thus rendered itself to be wound up under the provisions of the Companies Act, 1956, hence the present petition.
4. Pursuant to the notice regarding admission issued to the respondent, the respondent company bas filed a counter statement disputing various averments made by the petitioner. It is stated that the petitioner has sought to enforce an alleged debt in respect of a transaction said to have taken place in the year 1991. On the face of such an allegation, the petition is liable to be dismissed as being time barred. The allegation that supply of alloy steel raw material was effected in favour of the petitioner is without any particulars, and the same is denied. Had the petitioner really supplied the materials, there is no reason why the petitioner has waited for more than 10 years to seek payment on the invoices relied upon by them. Obviously, no such supply was effected. The respondent had faced acute financial trouble in or about 1994-1996. There were several winding up petitions that were filed against the respondent company. This court even ordered the advertisement of the company petitions against the respondent. The petitioner would have at least at that point of time, come forward and made a claim before this court. No such attempt or effort had been taken by the petitioner. The respondent was taken over by a new set of promoters from Indonesia in the year 1997. The respondent company is carrying on business smoothly and [that] being the case, the petitioner cannot seek orders of winding up of the respondent company on frivolous grounds. The managing director has not made any such statement as alleged in the petition.
5. In the light of the above pleadings, I have heard the learned counsel for the petitioner as well as the respondent company.
6. The only point for consideration in this petition is, whether the petitioner has made out a case for winding up of the respondent company in terms of Section 433 of the Companies Act, 1956?
7. In support of the claim that the petitioner supplied alloy steel raw materials, the petitioner has furnished details regarding invoice number, date and the respective amount due from the respondent company. No doubt, all the three original invoices have been filed along with this company petition. All the three invoices are dated 17-1-1992, 9-3-1992 and 12-5-1992. It is not clear, why appropriate steps have not been taken by the petitioner in time for claiming the amount due to them from the respondent company. Though learned counsel for the petitioner has stated that all along, several representations have been made, except the statutory notice dated 5-9-2001, no other representation said to have been made, was produced before this court. There is also no acceptable explanation for not taking appropriate steps for the last nine years. As a matter of fact, the above company application has been filed only on 26-2-2002, i.e., nearly after 10 years.
8. It is true that in spite of the statutory notice, dated 5-9-2001, the respondent-company did not send any reply. However, in the counter statement, it is stated that in the absence of details, namely, invoice and other particulars, the respondent ignored the notice. As rightly brought to my notice, the statutory notice dated 5-9-2001 does not refer to any of those details, such as invoice number, date and amount. Only in this company petition, the petitioner has referred to those details. Likewise, though in this petition, it is stated that the managing director of the respondent-company orally agreed to discharge the amount, admittedly, the same has not been stated so in the notice, dated 5-9-2001. It is also staled in the counter affidavit that when the respondent-company had faced acute financial trouble in the year 1994-1996, there several winding up petitions were filed before this court and this court even ordered advertisement of the company petitions against the respondent. In such circumstances, as rightly contended on the side of the respondent, at that point of time, nothing prevented the petitioner to come forward with a claim before this court. Admittedly, no such attempt or effort had been taken by the petitioner.
8.1 In the light of what is stated above, I am satisfied that the present company petition is bereft of the required details, and I do not find any merit in complying with the request of the petitioner. Consequently, the company petition is dismissed.
8.2 No cost.