SHRINATH BEARING PVT LTD Vs. DHAR CEMENT LTD

JUDGEMENT

(1.) HAVING heard learned counsel for the parties and having perused the record of the case. I find no case to entertain this company petition and hence, it merits dismissal.

(2.) IT is not in dispute that the respondent-company against whom this company petition is filed for its winding up is declared a sick company under the provisions of the SICA by the Board for Industrial and Financial Reconstruction. It is also not in dispute that in terms of an order passed by the BIFR, the respondent-company is ordered to be wound up and reference to that effect is now to be made to this court under the SICA for winding up of the company in accordance with the provisions of the Companies Act. It is also not in dispute that the said order of the BIFR has not yet been given effect to because it is presently sub-judice in appeal filed by the company before AAIFR.

(3.) IT is in the aforesaid background which emerges out of the record, the question arises as to what is the fate of this company petition and what order can be passed. It is a petition filed by what the petitioner claim themselves to be the creditor of the respondent-company. They complain that they supplied certain goods to the respondent-company valuing Rs. 2,53,732. 89 on different dates between 1996 and 1997 and raised several bills but the respondent in spite of receipt of the goods did not pay its price and hence, notice under Section 434 of the Act was served on the company because it happened to be a company under the Companies Act and followed by this company petition. It was alleged that since the respondent-company has failed to pay the amount demanded and hence, it is a case of debt not being paid despite demand thereby making out a case for winding up within the meaning of Section 433 (e) ibid--i. e. , deemed inability to pay the debt, as defined under Section 434 ibid.