A company may be wound up if it is unable to pay its debts, is commercially insolvent, or if it is just and equitable to do so.

PADMA KHASTGIR, J.

( 1 ) THIS application is for winding up of the company, Siddhartha Apparels Pvt. Ltd. The claim of the petitioning creditor arises in respect of the arrears of rent payable by the company. By an -agreement in writing dated April 29, 1979, executed by and between the petitioning creditor and the said company, the petitioner let out and delivered vacant possession of about 88,000 sq. ft. space in the third floor of premises No. 24/1/1, Alipore Road, Calcutta, to the company. The company entered into possession, and agreed to pay the rent on and from May 1, 1979, at the rate of Rs. 8,000 per month, according to English calendar year, payable in advance on or before seventh of every month, occupier's shares of taxes and/or other taxes payable by the occupier and pay the proportionate charges or shares for the maintenance of the pumps, meters, electricity consumed and for water supply. On May 2, 1979, the company paid a sum of Rs. 7,000 by cheque being the rent for the month of May, 1979, but the company defaulted from the month of February, 1981, in payment of rent and as a result, a total sum of Rs. 1,36,000 representing rent payable for the period February, 1981, to June, 1982, exclusive of interest and a further sum of Rs. 48,000 representing occupier's shares of taxes, Rs. 2,000 representing charges for water supply and electricity consumed, charges aggregating to a sum of Rs. 1,86,000 became due and payable. As a result, the petitioner filed an ejectment suit against the company being Title Suit No. 85 of 1981 before the Alipore Court and prayed for a decree for ejectment, damages, perpetual injunction, costs, etc. The company filed an application in the said suit under the provisions of Section 17 (2) (a) and (b) of the West Bengal Premises Tenancy Act wherein the company admitted that it was not in a position to pay all the arrears of rent at a time inasmuch as the company was running at a loss and passing through financial stringency and wished to pay only a sum of Rs. 1,000 per month, that is, the company desired to pay the dues of the petitioning creditor in 187 months, nearly, in 15 years' time. The petitioner contended that it being a charitable trust and in the event the company paid the arrears of dues to the tune of Rs. 1,000 per month, it would suffer irreparable loss and prejudice. The petitioner contended that the company is commercially insolvent and is unable to pay its debts and has categorically admitted before a court of law its inability to pay and its financial stringency. Moreover, the company failed to submit its annual report and the balance-sheet since 1976.

( 2 ) ACCORDING to the company, this winding-up petition was a pressure tactics inasmuch as the petitioning creditor had already instituted a suit for eviction on the ground of non-payment of rent before the Alipore court. Under the circumstances, the company contended that this proceeding was in the nature of parallel proceedings in respect of the same cause of action and as a result, such course should be deprecated by this court more so to avoid conflict of jurisdiction of findings by two parallel courts of competent jurisdiction. The petitioner had not served the statutory notice for its claim on account of non-payment of rent. Under the circumstances, there could be no presumption for constructive admission of liability to pay the petitioner's dues. The presumption of inability to pay the debts of the petitioner is not available in the instant case within the meaning of Section 434 of the Companies Act. It had been further contended that the petitioning creditor before the Alipore court moved an application on an untrue allegation that the company was trying to part with possession of the premises and/or sub-let the same without the prior consent of the landlord but when it was brought to the notice of the learned judge that under the agreement the company was entitled to sub-let the said premises, the said interim order

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