JUDGMENT

Chari, J - This is an application by Manjeebhai Khataw & Co. for an order to wind up Jamal Brothers & Co. Ltd. The petition states that Messrs. Jamal Brothers & Co. Ltd. are indebted to the petitioning firm in the sum of Rs. 99,320-14-3. A notice was issued on the 21st March 1925 demanding the sum of money due to the petitioners and requiring payment within three weeks from the date of service of the latter and notifying that if the payment is not made the petitioners will apply to the High Court to have the company wound up. This notice was written and signed fey Mr. Higginbotham under instructions from his clients, the petitioners. After the filing of the application the necessary notices and advertisements were ordered on the 12th May 1925 and the matter was fixed for hearing on the 12th June 1925. It was also ordered that the petition should be advertised in the Rangoon Gazette, Rangoon Times, the Burma Gazette, the Rangoon Samachar and the Sun. The advertisements, though ordered on the 12th, were not issued till the 29th May 1925 and the advertisements actually first appeared on the 2nd June. The preliminary objections were taken before me in respect of this application.

2. The first objection relates to the form in which the notice of demand was issued. The objection turns on the wording of Section 163, Indian Companies Act. Section 163 provides that a company shall be deemed to be unable to pay its debts if a creditor by assignment or otherwise to whom the company is indebted in a sum exceeding Rs. 500 then due, has served on the company by leaving the same at its registered office, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor. The objection turns on the words " a demand under his hand." It is argued that the section contemplates a demand under the hand of the creditor, that is, a demand signed and issued by him personally and the demand by Mr. Higgin-botham, as advocate for the creditors, acting on their instructions, is not a demand which satisfies the requirements of the section. Before dealing with this objection I may draw attention to the fact that it is not a fatal one. The grounds for ordering a company to be wound up are given in Section 162 and one of such grounds is the inability of the company to pay its debts. Section 163 of the Act merely provides when a company is to be deemed unable to pay its debts and according to that section, be sides the ordinary modes of proving the inability of the company a special rule of evidence is introduced, the effect of which is, that if the notice provided for by Clause (1), Section 163, is given and default is made, then the company is conclusively presumed to be unable to pay its debts. Once a notice is properly given and default is made it is not open to the debtor to show that, in spite of the non-payment of the debt he is in a position to pay his debts, as, for example, where, on account of a temporary embarrassment, he is unable to meet the particular liability, though he has ample assets in his hands. This, to my mind, is the whole effect of Section 163, Indian Companies Act.

3. Dealing with the objection raised, the argument, as I have stated before, is that the wording of the section requires that the demand must be made under the hand of the creditor. Mr. Higginbotham, when he issued the notice and made the demand, was undoubtedly acting as the agent of the creditor and the question for decision is whether when the demand is made not under the hand of the creditor, but under the hand of an advocate as the agent of the creditor, such a demand fulfils the conditions of the section. It is true that the words "under his hand" are peculiar and would seem to imply that the notice must be issued under the hand of the creditor himself, but the real question is whether a notice of demand by an