S.K. Keshote, J.-Heard learned Counsel for the petitioner-company and perused the entire material available on the record of the petition.

2. Thisis the Company Petition under Sections 433(e) and 434 of the Companies Act, 1956 filed by the petitioner-company with a prayer that the respondent-company M/s. Magan Roller Flour Mills Private Limited be wound up under the provisions of Section 443 of the Companies Act, 1956.

3. Havingheard learned Counsel for the petitioner-company I am of the opinion that in such matters the effective and proper remedy is to file a suit. It is the developing tendency amongst litigants more particularly dealing with the companies registered under the Companies Act, 1956 to make this winding-up jurisdiction of the Court as a forum for recovery of their dues. This is not the purpose and object of the Companies Act, 1956. They are making this winding-up jurisdiction of the Court as an executing Court for recovery of their dues. At the threat of this winding-up petition, if it is not unknown, many litigants have been able to get their dues. I may remind to the litigants of this category of Order 87 of the CPC a special provision for summary suits. Order 37 of the CPC has been enacted for expeditious recovery of the dues of this category of creditors. But that remedy has deliberately not been availed of The reason is very obvious. In a suit under Order 37 of the CPC a litigant has to pay heavy Court fees. In the petition it is only a nominal Court fees. The claim of the petitioner company against the respondent-company is of Rupees eighty-five lakhs.

4. Be that as it may I find that a cheque of rupees eighty-five lakh was there in the name of the petitioner-company. In case it is not honoured the remedy was to proceed under Section 138 of the Negotiable Instruments Act against the respondent-company.

5. Sine qua non for entertaining the petition for winding-up of the respondent-company under Section 433(e) of the Companies Act, 1956 is a legal and valid notice to the Company under Section 434 of the Act aforesaid.

6. In para No. 12 of the Company Petition the averments made by the petitioner are as under:

“12. Inability of pay debts.--12(a) That the petitioner further states that he addressed the said legal notice dated 27th of April, 2004, to the Respondent-Company by (i) Registered Post A.D. and (ii) under certificate of posting, at both the addresses mentioned hereinabove, demanding the said sum of Rs. 1,22,40,055 (Rupees one crore twenty-two lakhs forty thousand and fifty-five only) plus accrued interest till date which amounted to Rs. 74,36,587 (Rupees seventy-four lakhs thirty-six thousand five hundred eighty-seven only), both aggregating to a sum total amount of Rs. 1,95,72,015 (Rupees one crore ninety-five lakhs seventy-two thousand & fifteen only). The said legal notices were sent by registered post on 27-4-2004 and under certificate ofposting on the 5th of May, 2004, to the registered office address of the Respondent Company at Jaipur. In spite of the expiry of the twenty one (21) days from the issue of the said legal notice dated 27th of April, 2004, the petitioners have not received any response at all. The petitioners are convinced that the respondent-company is unable to pay the debts to its creditors within the meaning of Section 433(3) of the Companies Act, 1956. The Photostat copies of returned registered envelop dated 7-5-2004, receipt of Registered Post AID, AID Card, returned U.P.C. Envelop and certificate of posting are annexed herewith and marked as Annexures 12, 13, 14, 15 and 16.

12(b) That the petitioner states that previously by a written communication dated 9-3-2004, addressed to various Authorities at Jaipur, Mumbai and Delhi, including the Petitioner herein as a ‘related creditor’ at Jaipur/ Mumbai, the Chairman & Managing Director of the respondent-Company has apologized and put on record his financial irregularities for nonpayment of various debts and business liab