(1.) This petition under sections 433(e) and 434(1)(a) of the Companies Act prays for winding-up for the respondent-company on the ground that the said company is unable to pay its debts. After going through the averments in the petition and the documents filed therewith, I find first of all that the alleged debt in the present case was not a determined or definite sum of money payable, that at any rate, the alleged debt was bond fide disputed by the company, and that there was actually a bona fide counter claim by the company against the petitioner. That is why even when the petition came up before me for the first time on 30.6.1989, itself, for directions regarding notice under rule 96 of the Companies (Court) Rules, 1959, I told the learned counsel for the petitioner that though a suit might lie on the plea put forward, a company petition would not lie. Then, I also asked the said counsel to produce the letter dated. 24.9.1988 written by the company to the petitioner, in reply to which the alleged statutory notice dated 10.10.1988 was sent by the petitioner to the company. But so far, the learned counsel has not produced the said letter dated 24.9.88 even though she was taking adjournments several times, that is, on 30.6.1989, 21.7.1989 and 28.7.1989 and 25.8.1989. All along, the said counsel was telling me that she would consult her client and consider withdrawing the company petition and filing a suit. But on 1.9.1989 when this petition came up finally before me, the petition was argued for admission. But, I find no merit in submissions made by the counsel.
(2.) The above said statutory notice dated 10.10.88 as stated above, is actually a reply to the above referred to letter dated 24.9.1988 of the respondent-company, even though the said notice adds at the end as follows:
(3.) Further, there is absolutely no averment in the petition as to when actually, the alleged debt fell due. When I put this question to the learned counsel for the petitioner, he could not mention any specific date positively as to when the alleged debt fell due. This is necessary to decide whether the alleged debt is a time barred one or not. If it is a time-barred debt, on the date of company petition, the company petition is not maintainable. (vide the Benaras Cotton & Silk Mills Limited Vs. Sulabha Devi Gupta (1985) 3 Comp LJ 318 (All) (DB) . Further, it is stated in the petition that the above said statutory notice dated 10.10.1988 was served on the company. But the petition does not say when actually, it was served on the respondent-company, nor it states whether any reply came to the statutory notice. Incidentally, it may also be noted that it has been held that if the allegations in the petition do not, by themselves make out the prescribed requirements, the deficiency cannot be allowed to be made up by leading fresh evidence at the hearing; but the petition should be dismissed (vide East Kajora Collieries Private Limited. In re (1964) 2 Comp LJ 178 (Cal.) .