Ratios:
a. Provision regarding creditor’s winding up is an enabling one and it does not confer any right on creditor to insist for ordering winding up.
b. Law creates a legal fiction of inability to pay debt when once debt is established and it is not repaid within statutory period on receipt of notice.

D. Murugesan, J.

1. The facts as put forth by the appellant are as follows:-

Tata Iron and Steel Company Limited, the appellant herein, is a company incorporated under the Companies Act, 1956 (hereinafter referred to as the Act), having its registered office at Mumbai and regional office at Chennai. A company by name Tata SSL Limited used to supply materials to M/s.Omega Cables Limited (hereinafter referred to as the respondent company), a company incorporated under the Act and has its registered office at Chennai, from the year 2001. The said Tata SSL Limited raised various invoices on the respondent company amounting to a sum of Rs.33,50,386/-, apart from an Interest Debit Note dated 17. 2001 for a sum of Rs.4,99,015/-. As against the said amount, the respondent company effected only a part payment of Rs.4,54,542.81 and still a sum of Rs.31,51,399/-remains due and payable by the respondent company. Without paying the outstanding amount, the respondent company, by a letter dated 23. 2002, informed the Tata SSL Limited that they have taken steps to bring the normalcy and the company shall produce normal production and start releasing the payments against the outstanding bills. Subsequently, the said Tata SSL Limited was merged with M/s.Tata Iron and Steel Limited (hereinafter referred to as the appellant company) and the amalgamation was sanctioned by the order of the High Court, Mumbai, dated 4. 2003 in C.P.No.100 of 2003. A notice was sent by the Tata SSL Limited earlier on 30.3.2002 and in spite of the undertaking given by the respondent company in their letter dated 23. 2002, no payments were made. Hence, the Tata SSL Limited caused a statutory notice dated 28. 2004 calling upon the respondent company to pay the said sum of Rs.31,51,399/-with further interest thereon within 21 days of receipt of the notice. It is the case of the appellant company that though the said notice was duly served on 28. 2004, the respondent company failed to pay the balance outstanding and therefore, another notice in the name of the appellant company was issued on 5. 2005. The said notice was returned with the postal endorsement company closed. Invoking Section 433 (e) and (f) read with 434 (1) (a) and 439 (11) (g) of the Act, the appellant company approached this Court for winding up of the respondent company on the ground that the respondent company failed and unable to pay the debts.

2. The said petition was resisted by the respondent company on two grounds. Firstly, it was opposed that the appellant company had failed to prove that the amount due is undisputed and there was no proper statutory notice before a petition for winding up was filed. The learned Judge, while accepting the case of the appellant that proper statutory notice was served on the respondent company, did not accept the relief of winding up on the ground that the appellant company had failed to prove that there is no dispute in respect of the amount. Hence, the present appeal.

3. We have heard Mr.R.Murari, learned counsel appearing for the appellant and Mr.R.Srinivas, learned counsel appearing for the respondent.

4. Mr. R. Murari, the learned counsel, would submit that the respondent company had accepted the outstanding amount in their letter dated 23. 2002 and there is no dispute as to the amount. The statutory notice issued on 30.3.2002 in the name of Tata SSL Limited refers to the sum actually due to the appellant company. Further, in the lawyers notice dated 28. 2004 issued in the name of Tata SSL Limited, the amount was mentioned. Lastly, the notice dated 5. 2005 issued in the name of the appellant company also contains the outstanding amount. The respondent company had not disputed the said amount by any reply. It is not necessary to quantify the amount in the notice. Hence, there is no dispute and the appellant company had proved the actual outstanding amount due to them from the respondent company. In terms of Section 434 (1)(a) of the Act, the Company