1982 (10) TMI 164

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....l 20, 1982, the managing director of the company asked the petitioner to withdraw the statutory notice. The statutory notice was accordingly withdrawn by the petitioner on April 20, 1982, itself. It is averred in the petition that along with the letter of withdrawal, another letter has been sent and the same has been acknowledged by the company. However, after the letter of withdrawal, the amount which was still outstanding, when demanded, was refused to be paid. Several letters were, thereafter, sent demanding the payment but the same were not at all responded and, hence, this company petition. A preliminary objection is raised by the respondent company on the ground that unless a statutory notice as contemplated under section 434(1)(a)....

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....s debts, the court shall take into account the contingent and prospective liabilities of the company." The letter dated April 23, 1982, of withdrawal by the petitioner addressing the respondent company reads :- "We hereby withdraw the legal notice that we have already issued for collecting the dues from you. We agree with you that there are a lot of issues pending settlement such as reconciliation of accounts, checking up of measurements, etc. We will sit together and sort out everything to enable you in settling our account in a full and final manner and till such time we assure you that we will not resort to any kind of legal action whatsoever." The letter of withdrawal was said to be accompanied by another letter and the ackn....

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....n because under clause (c) of section 434(1) of the Act, if the court is satisfied that the company is unable to pay its debts that is adequate for the purpose of maintainability of this application and for this he seeks to place reliance on three instances. One is that the State Financial Corporation has subjected the machinery owned by the respondent company to sale towards the debts owed by the company to it and that is made clear as per the counter-affidavit filed by the State Financial Corporation. Secondly, a suit is said to have been filed against the respondent company by a creditor in the High Court of judicature, Tamil Nadu, at Madras. Thirdly, series of letters are said to have been sent to the respondent-company subsequent to th....