SHAM LAL GUPTA Vs. HEMCO INDUSTRIES (P) LIMITED

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of the learned Company Judge dated 17.5.1994 whereby the petition of the appellant under Sections 433(e), 434 and 439 of the Companies Act, 1956 (for short 'the Act') for winding up of the respondent -company, M/s Hemco Industries Private Limited, Jalandhar (hereinafter called the Company) has been dismissed.

(2.) BEFORE adverting to the controversy raised in the appeal, the relevant facts may first be noticed.

(3.) THE respondent company contested the petition and contended that it had Refunded the share application money of Rs. 1.10 lacs to the appellant in the year 1988. It claimed that the appellant, his wife and children had filed a suit against the company in the Court of Senior Sub Judge, Jalandhar claiming various amounts due to them. However, the suit was compromised on 15.9.1988 and company had paid a consolidated sum of Rs. 1.50 lacs to settle all claims whatsoever of the appellant and his family. The case of the company was that the sum of Rs. 1.50 lacs paid on 15.9.1988 while settling the disputes in the suit included the amount of Rs. 1.10 lacs claimed by the appellant in the present petition. It, therefore, denied that the company was unable to pay its debts. The company also maintained that it had duly sent replies to the statutory notices received from the appellant as per its letter dated 11.2.1992 and 1.10.1993. The petition was also contested on the ground that the claim of the appellant was barred by time and petition for winding up, therefore, it was liable to be dismissed on that ground as well. On the pleadings of the parties, the learned Company Judge formulated the following two questions; -