SHANTILAL KHUSHALDAS AND BOS Vs. JAYABALA SURESH SHAH

JUDGEMENT

(1.) THE Company petition was lodged by the petitioners therein on 4th September, 1992. They have prayed that the company, namely, Shantiial Khushaldas and Brothers Private Limited be wound up under the provisions of the Companies Act and a Liquidator be appointed. The Company has taken out Judge's Summons praying that the petition be rejected in limine. In the affidavit in support 10 grounds have been set out for which it is submitted that the petition is liable to be rejected in limine. In ground No. 6 it is contended that the letter dated january 23, 1991, which purports to be a notice under Section 434 of the companies Act, 1956 does not comply with the provisions of the said section. It was, however, at the time of arguments that the learned Counsel for the company Mr. Nakodkar submitted that the notice relied upon by the petitioners, which is foundation of the petition, could not be relied upon or taken advantage of for the present petition by the petitioners in view of an earlier petition being Company petition No. 5-S of 1991 for similar relief for wind: ng up founded on the basis of the same notice had been rejected by this court by its Judgment and Order dated 12th/14th February, 1992. The question, therefore, that arises for consideration is whether a second petition is maintainable on the strength of the statutory notice which was availed of for the purpose of filing the earlier petition for winding up and that petition came to be rejected.

(2.) IT may not be out of place to mention here that the earlier petition was rejected on the ground that the petitioners therein were not authorised to institute the proceedings on behalf of the petitioners. The Court held that the power to do so itself was lacking. Hence the petition was rejected and the Judge's summons was made absolute. It is submitted by the learned counsel for the petitioners-creditors that the earlier petition was thus rejected only on a technical ground and not on merits and therefore no question can arise of the notice on the basis of which that petition was filed being rendered ineffective for the purpose of present petition.

(3.) SECTION 433 of the companies Act enumerates the circumstances in which a Company may be wound up the Court. Clause (e) thereof provides that if the company is unable to pay its debts, that may be a ground on which the company may be wound up.