((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.821 OF 2002 United Nilgiri Tea Estate and Co. Limited Petitioner versus Credential Finance Limited Respondent WITH COMPANY PETITION NO.891 OF 2002 M/s.Kamal & Co. Petitioner versus Credential Finance Limited Respondent Rajiv Narula i/by Jhangiani, Narula & Associates a/w Mr.Arup Dasgupta and Ms.L.K.Bulchandani for petitioner in CP No.891 of 2002. Dharm F. Sharma for respondent Provisional Liquidator in CP 821 and 891/2002. CORAM : A.M.KHANWILKAR, J. DATE : 18th March 2008 PC : 1. Insofar as Company Petition No.821 of 2002 is concerned, the petitioner asserts that an intercorporate deposit facility was extended in the sum of Rs.25.00 lakh. The respondent company executed necessary documents in relation to the said transaction such as promissory note and ((-2-)) MST related documents. The respondent also issued cheque in favour of the petitioner in the sum of Rs.25.00 lakh towards repayment of the intercorporate deposits. The said cheque was presented, however, was returned by the bankers of the respondent company with endorsement "insufficient funds". As the respondent admitted its liability to repay the amount with interest and that amount remained outstanding in spite of repeated reminders, the petitioner issued statutory notice on 7th November 1997. The said notice was duly served on respondent as is evident from the averments in the petition supported by materials on record. In spite of statutory notice no payment has been offered by the respondent to the petitioner. Consequently, the petitioner has filed present petition on 22nd April 2002 in this Court praying for winding-up of the respondent company. No reply has been filed to controvert the assertions made in this petition. In that sense the case made out by the petitioner has been conceded by the respondent having remained uncontroverted. From the materials on record it is obvious that the respondent admitted its liability to pay a sum of Rs.25.00 lakh along with interest thereon which remained outstanding. In spite of statutory ((-3-)) MST notice, as the respondent has failed and neglected to pay the amount, it necessarily follows that the respondent is unable to pay its debt. On this finding, the petition ought to succeed in terms of prayer clauses (a) and (b) having regard to the outstanding claim of the petitioner which according to the petitioner is in the sum of Rs.54,15,993/- consisting of Rs.28,30,000/- towards principal amount and Rs.25,85,993/- being interest @ 24% p.a. from 7th August 1999 up to 8th September 2001. 2. In addition to the aforesaid claim, there is yet another petition pending against the respondent company for relief of winding-up on account that the company is unable to pay its debt. This claim is founded on assertion that the respondent was liable to pay professional bills of the petitioner in the sum of Rs.3,75,500/-. In spite of statutory notice the respondent failed and neglected to pay the said amount. The petitioner eventually filed present petition praying for winding-up of the respondent company. Besides filing of the present petition, the petitioner also resorted to summary suit being Suit No.3807 of 2002 in respect of self same claim. That suit stands decreed in terms of ((-4-)) MST judgement and decree dated 1st February 2005 passed by this Court. It is not in dispute that the said decree has become final as the respondent has not carried the matter in appeal so far. Assuming that some defence was raised by the respondent in respect of the claim of the petitioner in this petition, however, having regard to the decree passed by this Court in relation to the said claim, it pre-supposes that the claim has been adjudicated by the Court of competent jurisdiction. In view of the said decree, therefore, the respondent was liable to pay the amount to the petitioner which has not been paid so far. Counsel for the respondent submits that the respondent would make one attempt to pay all the outstanding claims of the creditors in particular petitioners before this Court. 3. Besides two petitions in which I am inclined to pass order of winding-up, there are two other petitions (Company Petition Nos.639 of 1999 and 265 of 1997) pending against the respondent company in which claim to the extent of Rs.1,47,19,757/- and Rs.1,42,78,062/- is pending unresolved. It is not necessary for me to address on the merits of those claims. Suffice ((-5-)) MST it to observe that insofar as two petitions before me which are disposed off by this common order, I have no hesitation in concluding that the respondent is unable to pay the dues. On this finding, both these petitions will have to succeed in terms of prayer clauses (a) and (b). The Provisional Liquidator appointed in respect of respondent company to discharge all the duties of the Official Liquidator in accordance with the provisions of Companies Act in view of the order of winding-up passed against respondent company. 4. It is made clear that as and when Ex-Director is in a position to satisfy the Court that all the claims pending against the respondent company will be amicably settled, it will be open to the Ex-Director to take out formal application for recall of this order, which will be considered on its own merits. Both these petitions are disposed off on the above terms. (A.M.KHANWILKAR, J.)