VIVEK HIRE PURCHASE AND LEASING LIMITED NO 150 LUZ CHURCH ROAD MYLAPORE CHENNAI 4 Vs. PAISAPOWER COM PRIVATE LIMITED NEW NO 169 2ND FLOOR T T K ROAD ALWARPET CHENNAI

JUDGEMENT

(1.) THE petitioner carries on business of hire purchase and lease financing of machineries and other materials. THE respondent company approached the petitioner with a request to provide hire purchase finance in relation to purchase of eight Compaq laptop computer and Compaq server. THE petitioner, after discussion, accepted the request for hire purchase of eight laptop computers and one computer server and Hire Purchase agreement No. 52071 dated 26. 9. 2000 was entered into between them. THE total hire purchase amount was Rs. 15,60,426 repayable in 24 monthly instalments, in which the first instalment commences from 26. 9. 2000 and the last instalment was on 26. 8. 2002. THE respondent is liable to pay Rs. 65,018 for the first 23 instalments and rs. 65,012 towards 24th instalment. THE respondent also agreed to pay penal interest at the rate of 36% per annum for delayed payments. THE suppliers of the assets raised invoices directly in the name of the petitioner. THE respondent paid instalments upto March 2001 and sent a letter dated 23. 4. 2001 requesting the petitioner for moratorium for repayment of instalments, which was also granted by the petitioner. THEreafter, the respondent failed to pay the instalments. THE petitioner caused inspection of the respondent premises and found that out of 8 laptops, 4 are available in Chennai and the remaining items were stationed in other cities and the server was located at the premises of VSNL at Chennai. THE petitioner sent letter dated 28. 7. 2001 reminding the respondent the due amount of Rs. 2,72,426 as on that date. By another letter dated 25. 8. 2001, the petitioner called upon the respondent to voluntarily surrender the assets taken as hire purchase. A sum of Rs. 20,000 was paid by the respondent by way of cheque dated 30. 8. 2001 enclosing a letter dated 27. 8. 2001 and informed that steps are being taken to bring the laptops to Chennai. By letter dated 29. 8. 2001, the respondent also agreed to surrender 4 laptops to the petitioner on 10. 10. 2001. On 20. 10. 2001, the respondent was called upon to pay the outstanding amount of Rs. 4,09,444 and requested to surrender the other 3 laptops as agreed in their letter dated 29. 8. 2001, but no action was taken by the respondent. THE petitioner has sent a letter dated 26. 11. 2001 calling upon the respondent to pay the outstanding amount of Rs. 11,41,092 as on that date. On 30. 11. 2001 and 1. 12. 2001, the respondent surrendered 2 laptops to the petitioner. THE petitioner also paid Rs. 44,082 payable by the respondent to vsnl, as requested by the respondent company, enabling VSNL to release the server to the respondent, which was handed over to the petitioner. Another laptop was also handed over by the employee of the respondent to the petitioner, thus the petitioner had recovered 4 laptops and one server. THE petitioner sold the laptops at Rs. 3,50,886 and the said amount was given credit to the hire instalment payable by the respondent. THE respondent has filed a suit O. S. No. 3006 of 2002 before the XIII Assistant City Civil Court, Chennai praying for a declaration to declare that the petitioner is not entitled to seize the assets and the same is pending. On 22. 6. 2002, the petitioner issued a notice under Section 434 of the Companies Act, calling upon the petitioner to pay the sum of Rs. 9,46,503 due as on that date. THE said notice was received by the respondent, but not paid the amount nor replied to the notice.

(2.) THE learned counsel appearing for the petitioner submits that the above said documents shows that the respondent is liable to pay undisputed sum of Rs. 9,70,689 as on 7. 8. 2002 along with interest calculated at 30% per annum and further the respondent company is deemed to be unable to pay its debts to the petitioner herein and other creditors and prayed for winding up of the respondent company.

(3.) SECTIONS 433 and 434 of the Companies Act are dealing with cases in which a company may be wound up by the Court. Section 433 (e) is one of the six clauses in which the Company may be wound up by the Court i. e. , if the company is unable to pay its debts'. Under Section 434, a creditor should make a demand requiring the company to pay the amount due to the creditor. The mode of making such payment is also mentioned in Section 434. Under sub-clause (a) of Section 434 (1), if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding rupees one lakh (substituted for Rs. 500 by Companies (Second Amendment) Act, 2002) 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 requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor.