Y. K. Sabharwal, J.

( 1 ) PETITIONER seeks winding up of M/s. Polar Forging and Tools Ltd. (for short "the company") on the ground that the company is unable to pay its debts. In short the case of the petitioner is as under:-

PETITIONER as per the order placed by the Company supplied to the company furniture during the period from September 1989 to December 1989 and submitted bills aggregating a sum of Rs. 5,25,707. 60 inclusive of sales tax, packaging and forwarding charges and freight. The company paid Rs. 4,05,000. 00 to the petitioner including payments made before commencement of supply and thus a sum of Rs. 1,20,707. 60 was still due and payable by company to the petitioner. The final payment was required to be made by the company to the petitioner latest by the end of January 1990 for the reason that the supplies were completed in December 1989 and the period of 30 days thereafter expired sometime in January 1990. According to practise and usage of the market the petitioner is entitled to interest on the outstanding amount at 18% p. a. from 1st february, 1990. The company has been acknowledging its liability and had also confirmed that the job had been carried out by the petitioner to the satisfaction of the company. The petitioner has demanded payment of Rs. 1,12,707. 60 with interest at 18% p. a but the company has not even sent reply to the letters of the petitioner and has further failed to pay the amount within three weeks from the date of receipt of the letters of demand and thus the company is unable to pay its debts and liable to be wound up.

( 2 ) IN the affidavit filed in opposition to. the petition various pleas have beel taken by the company including the plea that no notice of demand has been served on the company prior to the presentation of the petition and even otherwise notices alleged as notices of demand are not legal.

( 3 ) DURING the pendency of this petition the company has, however, paid to the petitioner a sum of Rs. 1,15,249. 60 being the undisputed part of the claim of the petitioner. This payment was made without prejudice to the contentions of the parties in regard to liability to pay interest and validity of the notice under Section 434 of the Companies Act, 1956 (for short the Act ). I have heard learned counsel in support of these contentions.

( 4 ) MR. Aggarwal, learned counsel for the petitioner contends that on Rs. 1,15,249. 60 the company is liable to pay interest at the rate of 18% p. a. a admittedly this amount was due as far back as in February 1990 but was paid abol two years later during these proceedings. Counsel contends that delay in payrnei occured inspite of the fact that the company had confirmed not only the amount di but also the fact that the petitioner had carried out the work to the entire satisfactian of the company and thus the petitioner is entitled to payment of interest. The contentita of Mr. Aggarwal is that on the failure, refusal and neglect of the company to pay the interest the petition, at this stage, deserves admission and ultimately the company would be liable to be wound up.

( 5 ) MR. Singhia, learned counsel for the respondents, on the other hand, contends, that assuming sum of about Rs. 1,15,000. 00 was due and payable by the company to the petitioner in February 1990 and it was paid after about two years from the due date, the present petitionis still not liable to be admitted. Two grounds are urged . by Mr. Singhia. (One) There is no contract between the parties for payment of interest and thus for non payment of alleged interest liability the petitioner is not entitled to invoke the winding up jurisdiction and (two) the petitioner has not served the company with a valid notice of demand.

( 6 ) IN order to appreciate the grounds urged by Mr. Singia few more facts may be notice. The order dated 3rd September 1989 containing the terms and conditions on which the furniture was supplied to the company has been placed on record. The order stipulates t

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