[ 1 ] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. COMPANY PETITION No.758/2003. Dr.Jagdish N. Shah & Anr. Petitioners. V/s. V/s. V/s. Suman Resorts (India) Ltd. Respondent. Mr S. Nagodaria i/b M/s. Mehta & Co. for the Petitioner. None for the Respondent. CORAM: CORAM: CORAM: V.C V.C V.C. DAGA,J. DAGA,J. DAGA,J. DATED: DATED: DATED: 28th FEBRUARY,2007. 28th FEBRUARY,2007. 28th FEBRUARY,2007. P.C.:- P.C.:- P.C.:- 1. Heard the learned counsel for the petitioner. None for the respondent. 2. Perused petition. 3. Petitioner has invoked jurisdiction of this Court under Sections 433 and 434 of the Companies Act, 1956 to seek winding up of "Suman Resorts (India) Limited" (hereinafter referred to as "respondent company"). [ 2 ] 4. The factual matrix on which petition is based, reveals that in or about 1996-97 the respondent company had entered into agreement with the petitioner being "Suman Holiday Bond" on the petitioners investing Rs.1,00,000/- with the Company. On 20th January, 1997 the respondent company issued to the petitioner one "Suman Holiday Bond" having face value of Rs. 1,00,000/- in the name of petitioner no.1 and also issued 10,000/- equity shares for the face value of Rs. 10/- each to the petitioners. 5. After expiry of the period of five years; on maturity i.e. on 20.1.2000; the petitioners surrendered to the respondent company the said bond and the share certificates alongwith membership card with a request to pay the said agreed return as per the agreement between the parties. The respondent company appears to have acknowledged receipt of the petitioner’s letter dated 4th March, 2002 alongwith annexures thereto. The respondent company failed to discharge their obligation. Petitioner became entitled to claim the amount of Rs. 1,50,000/- from the respondent since the respondent company had agreed and guaranteed buy back the bonds alongwith shares at 1.50% face value i.e. at [ 3 ] Rs. 1,50,000/- on completion of five years from the date of agreement. 6. It is also brought on record that as per the aforesaid agreement the company had agreed to return and agreed to pay interest @ 11% per annum for the period 21.1.1997 to 20.1.2000 but failed to pay the same. 7. In the aforesaid back drop, the petitioner was required to issue statutory notice calling upon the respondent company to discharge its debt within statutory period of 21 days from the date of receipt of notice. Notice was received by the respondent company. Acknowledgement in that behalf is filed on record. However, there was no reply to the said notice. 8. Consequently, petitioner was required to invoke jurisdiction of this Court to seek winding up of the company. 9. After admission of this petition, notice was again issued to the respondent company. Inspite of service of notice nobody has appeared on behalf of the respondent company. No reply is filed to answer the [ 4 ] petition. Under these circumstances, there is no dispute with regard to the debt due and recoverable from the respondent company. 10. In the above view of the matter, the respondent is bound to discharge it’s liability set up in the winding up petition. In other words, assertion made in the petition which are supported by the documents placed on record have remained uncontroverted. In that sense the legal presumption that arises against the respondent company that it is unable to pay it’s debts has remained unrebutted. The petitioner has made out a case to invoke the jurisdiction under Section 434 (1) (a) of the Companies Act, 1956. Under these circumstances, the respondent company is liable to be wound up. 11. In the result, the petition is made absolute in terms of prayer clause (a) and (b) with no order as to costs. [V.C.DAGA [V.C.DAGA [V.C.DAGA,J]J]J] [ 5 ]