The admission of the debt, failure to pay, and absence of objection or defense justified the winding up of the company under the Companies Act, 1956.

( 1 ) BOTH these company petitions have been filed under Sections 433, 434, 439 of the Companies act, 1956, with a prayer to wind up Khaitan Overseas and Finance Ltd. (hereinafter called as the company) under the directions of the court and to appoint any fit or proper person as liquidator of the company with authority to take charge over the assets of the company in accordance with law, with all powers under the Companies Act, 1956, and for other reliefs.

( 2 ) THE company petitions were presented on 27. 8. 1999. On 23. 9. 1999, notice was directed to be issued to the company to show cause as to why the petition be not admitted and advertised, fixing the matter on 3. 11. 1999 by which date the company was required to give its reply. A supplementary affidavit of Sri Sushil Kumar Dhandhania, Chairman-cum-director, Dhandhania brothers (P) Ltd. , 4, Middleton Street, Calcutta, was filed, deposing that statutory notice under section 434 of the Companies Act was sent by registered post to the company at its registered office. It was received by the company ; but no reply was received nor has the debt been paid by the company. In response to the notice, an application was filed on 10. 4. 2000 by Sri R. P. Agarwal, Advocate, on 11. 9. 2002, on behalf of Narendra Kumar Jha, Chief Manager (Legal) of the company (sic ). The applicant company filed an amendment application dated 2. 5. 2001 to amend the company petition. These amendments were allowed on 30. 7. 2001. Preliminary objections were raised in the counter affidavit of Sri Narendra Kumar Jha to the effect that the company petition was not supported by a proper affidavit and has not been filed by a competent person. A third objection was taken to the effect that the loan in respect of which petition is filed is time barred. The first and second preliminary objections were directed and overruled by order dated 13. 12. 2001. In respect of the third objection, the order dated 13. 12. 2001 recorded a statement of Sri R. P. Agarwal that after the amendment of the company petition, and the documents filed along with amendment application when the company petition was filed, the loan cannot be said to be time barred, and as such, he does not press the objection in this regard. In the concluding portion of the order dated 13. 12. 2001, it was observed that the liability has not been denied, and that the objection that the debt is time barred has not been pressed.

( 3 ) AFTER the disposal of preliminary objections, company petitions were admitted and were directed to be advertised in accordance with Rule 24 of the Companies (Court) Rules, 1959. The advertisement was carried out, both in Official Gazette of Uttar Pradesh, dated 12. 10. 2002, and in the newspapers, namely,--Times of India published in English from Lucknow, dated 2 january, 2002, and the daily newspaper Anj published from Allahabad of the same date. An affidavit of Sri Amar Bahadur Singh, Pairokar of Dhandhania Brothers Ltd. , was filed, deposing that the advertisement as directed by this court has been carried out. Counter and supplementary rejoinder affidavits have been filed. No other person has filed any objection or reply.

( 4 ) THE facts of the case are that in Company Petition No. 77 of 1999, the applicant company, advanced a loan of Rs. 25 lakhs to the company. The loan was taken on 28. 10. 1993 against pledge of shares. The debt was still due with interest and TDS and a total amount of Rs. 43,15,818 is due to be paid by the company to the applicant company. A notice of demand dated 10. 3. 1999 was sent to the registered office of the company at Somdutt Plaza (22 floor), the Mall kanpur, but in spite of service of the statutory notice, the debt was not paid. The loan was given to Khaitan Hostombe Spinels Ltd. , 234/3-A, AJC, Bose Road, Calcutta, which merged in khaitan Overseas and Finance Ltd. In the order dated 27. 5. 1997 of this court in Company petition No. 44 of 1996 connected with Company Appl