IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.04.2009

CORAM :

THE HONOURABLE MR.JUSTICE D.MURUGESAN

and

THE HONOURABLE MR.JUSTICE C.S.KARNAN

O.S.A. No.172 of 2008

Tata Iron & Steel Company Limited,

Rep. By its Power of Attorney Holder,

K.E.Srinivasan (Regional Accounts

Manager), Anna Salai, Chennai.

.. Appellant

-vs-

M/s.Omega Cables Limited

16-17 New No.20, Industrial Estate,

Ambattur, Chennai.

.. Respondent

Appeal against the Order dated 29.2.2008 made in C.P.No.54 of

2006.

For Appellant

:

Mr.R.Murari

For Respondent

:

Mr.R.Srinivas

J U D G M E N T

D.MURUGESAN, J.

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 18.7.2001 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 21.3.2002, informed

the Tata SSL Limited that they have taken steps to bring the normalcy

https://hcservices.ecourts.gov.in/hcservices/

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 3.4.2003 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 21.3.2002, no

payments were made. Hence, the Tata SSL Limited caused a statutory

notice dated 23.8.2004 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 27.8.2004, the

respondent company failed to pay the balance outstanding and

therefore, another notice in the name of the appellant company was

issued on 6.5.2005. 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 21.