TaxTMI 
TaxTMI 
2013 (3) TMI 882
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....nior General Manager-Projects of the Respondent company, Parsvnath Developers Limited ('PDL'), seeks its winding up in this petition under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 ('Act') on the ground of the inability of PDL to pay the debt owing to him. 2. By a letter dated 28th March 2008, the Petitioner was appointed to the above post with total emoluments of Rs. 1,92,333 per month i.e. basic pay Rs. 1,28,000 and HRA Rs. 64,333 per month besides medical benefits, car with driver, mobile phone and other benefits and perks as applicable to an officer of an equal rank. 3. There was a reduction of the Petitioner's salary from November 2008 to Rs. 1,56,247 per month by a letter dated 21st November 2008. Acco....
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.... dated 24.11.2012, wherein your Client has duly acknowledged receipt of Rs. 4,45,200/- (Rupees Four Lakhs Forty Five Thousand Two Hundred only), which was tendered to your Client pursuant to your Client's resignation. This amount was paid to your Client in full and final settlement of all his dues and claims. It is reiterated that vide letter dated 21.11.2008, your Client's salary was re-fixed from Rs. 2,08,309 (Rupees Two Lakhs Eight Thousand Three Hundred Nine Only) to Rs. 1,56,247/- (Rupees One Lakhs Fifty Six Thousand Two Hundred Forty Seven Only) due to economic meltdown in the India specially in the real estate sector. It was specifically stated in the said letter that your Client's salary was being re-fixed, the other terms as contai....
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...., upon whom copies of the petition are to be served. The Judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition." 7. Mr. Chandra laid emphasis on the observation of the Supreme Court to the following effect: "When a petition is filed before the High Court for winding up of a company under the order of the court, the High Court (i) may issue notice to the company to show cause why the petition should not be admitted; (ii) may admit the petition and fix a date for hearing, and issue a notice to the company before giving directions about advertisement of the petition; or (iii) may admit the petition, fix the date of hearing of the petition, and order that the pe....
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....ed in the petition. The Supreme Court has been careful to observe that "the High Court may issue notice" to the company and "may admit the petition". In other words, nothing in the above decision suggests that issuance of a notice in a winding up petition is automatic. On the other hand, it is clear that the discretion of the Court not to issue notice if it feels that no case is made out by the Petitioner is recognised. 9. Reliance was next placed by Mr. Chandra on the decision of the Supreme Court in Madhusudan Gordhandas and Co. v. Madhu Woollen Industries Pvt. Ltd. 1972 (42) Company Cases 125. In the above decision, the Supreme Court explained what would constitute inability of a company to pay its debts and observed as under: "Two ru....
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....ence depends". 10. In the present case it is not possible to conclude at this stage and in the facts noted hereinbefore that the debt as claimed by the Petitioner is "undisputed". It is also not possible to come to the conclusion at this stage without any further examination of evidence that the defence of PDL is not in good faith and without substance. The submission of Mr. Chandra that even at this stage the burden is on PDL to show that its defence is likely to succeed in a point of law and that it has to prima facie prove the facts on which its defence depends, is not acceptable. That stage would arrive after the Petitioner is able to satisfy the Court, even prima facie, that the debt is undisputed and that the Respondent is unable to ....