JUDGMENT : N.G. Nandi, J. By this petition under Sections 433 and 434 of the Companies Act, 1956, the petitioning creditor prays for winding up of the respondent-company. 2. The say of the petitioner is that the petitioner-company is an unsecured creditor, that the respondent-company--Fleetweld (India) Ltd., was established as a public limited company on July 1, 1991, having its registered office situated at 42/43, Tapovan Society, Nizampura, Vadodara, to manufacture and/or to fabricate and to deal at national and international level in plant and machinery for welding consumables and equipment and offer them on turnkey basis or otherwise. That between January, 1994, and March, 1994, the petitioner had supplied EQ Wire rods against the post-dated cheque facility to the said company. The post-dated cheque No. 184747 dated March 31, 1994, for Rs. 23,50,000 and the post-dated cheque No. 197179 dated May 30, 1994, for Rs. 11,87,000 drawn by the respondent-company in favour of the petitioner, on presentation, were returned dishonoured. That despite repeated requests and reminders the respondent-company has failed and neglected to pay the aforesaid amount with interest thereon. That the petitioner-company addressed letter dated October 3, 1994, to the respondent-company calling upon it to make the payment of the outstanding dues but of no consequence. That a statutory notice dated July 25, 1995, was served to the respondent-company ; that in reply to the said notice, the respondent-company had admitted its liability ; that the petition-company had failed and neglected to make the payment of its admitted dues to the petitioner and the respondent-company is indebted to the petitioner-company to the tune of Rs. 17,82,324.28 along with interest at the rate of 18 per cent. ; that it is just and equitable that the respondent-company should be wound up. It is stated by counsel for the petitioner that in fact the respondent-company paid an amount of Rs. 20,88,954.80 by demand draft dated June 21, 1994. That after adjusting the payments made by the respondent-company Rs. 17,82,324.28 remained due and payable with 18 per cent. interest by the respondent-company. 3. It is stated by counsel for the petitioner that in fact the respondent-company paid an amount of Rs. 20,88,954.80 by demand draft dated June 21, 1994. That after adjusting the payments made by the respondent-company Rs. 17,82,324.28 remained due and payable with 18 per cent. interest by the respondent-company. 3. The respondent-company filed a reply inter alia contending that a substantial amount has already been paid to the petitioner-company on different dates, that only because of the financial crunch and overall financial crisis in the market, the respondent-company is facing financial difficulty for the time being but the condition is not such that the company is required to be wound up ; that the respondent-company is a running concern and there are about 250-300 workers still working with the respondent-company ; that approximately there is a turnover of Rs. 3 to 3.5 crores and the respondent-company is trying their best to get out of the financial difficulties and the respondent-company agreed to pay the amount due to the petitioner-company in monthly instalments of Rs. 50,000 for the initial period of six months and thereafter at monthly instalments of Rs. 75,000 ; that the respondent-company has already started making payments to the petitioner-company at Rs. 50,000 per month to show its bona fides. Looking to the aforesaid facts and circumstances and in view of the fact that the respondent-company is a running concern, it cannot be said that the respondent-company is commercially insolvent and it cannot be ordered to be wound up only because of its inability to pay on a particular date. 4. It may be noted that in the affidavit-in-reply, the respondent-company has not disputed the dues claimed in the petition. All that has been stated in the affidavit-in-reply is the financial crunch/difficulties and that the respondent-company is a going concern suggesting a turnover of Rs. 3 to Rs. 3.5 crores. 5. In this matter on June 25, 1997, the respondent-company sought time to make a proposal of the agreement in regard to the sums claimed by the petitioner. On July 22, 1997, the respondent-company sought a last opportunity to put forward a viable proposal for settlement and also stated that within a week the respondent-company shall be making payments up to Rs. On July 22, 1997, the respondent-company sought a last opportunity to put forward a viable proposal for settlement and also stated that within a week the respondent-company shall be making payments up to Rs. 50,000 through a demand draft or a banker's cheque and that the respondent-company shall be placing all the relevant information about its financial viability to discharge its debts within a reasonable period. On July 29, 1997, counsel for the petitioner has stated that the respondent-company has paid Rs. 50,000 pursuant to the earlier order and that the respondent-company has further agreed to pay Rs. 1 lakh by August 15, 1997, and negotiate for the settlement. On October 15, 1997, counsel for the respondent stated that further payment of Rs. 50,000 would be made and proposal for the settlement would be given to the petitioner. On February 23, 1998, the dues of the petitioner against the respondent-company mounted to Rs. 15 lakhs and the petition came to be admitted and petition was ordered to be advertised in the newspapers as well as the Official Gazette. 6. The petition was advertised in the local daily newspaper Sandesh (Gujarati), Indian Express (English), Vadodara edition, on October 15, 1998. In reply to the public notice, Bombay Mercantile Co-operative Bank Ltd. has filed an affidavit testifying to the effect that the bank had granted an overdraft facility to the respondent-company to the tune of Rs. 50 lakhs against hypothecation of stock-in-trade consisting of welding apparatus, electrodes, accessories and consumables. The hypothecation facility to the tune of Rs. 50 lakhs against the hypothecation of book debts not exceeding 90 days term with 50 per cent. margin, aggregating to Rs. 1 crore. That for securing both these facilities, the respondent-company created equitable mortgage of factory, land and building situated at village Timba, Taluka Godhra, District Panchmahals, admeasuring 13,555 sq. metres belonging to the respondent-company in favour of the said bank. The respondent-company had also hypothecated plant and machinery, furniture and fixtures, office equipment and other fixed assets etc. in favour of the bank. It is further testified that as on November 2, 1998, the total outstanding in the overdraft account of the respondent-company is Rs. 1,31,18,823.78 and that the bank is a secured creditor and the bank's interest is required to be protected by this court in the present proceedings. in favour of the bank. It is further testified that as on November 2, 1998, the total outstanding in the overdraft account of the respondent-company is Rs. 1,31,18,823.78 and that the bank is a secured creditor and the bank's interest is required to be protected by this court in the present proceedings. It is further testified in the affidavit that the bank reserves its right to remain outside the winding up proceedings and also reserves its right to recover the outstanding dues, due and payable by the respondent-company by way of resorting to appropriate remedy available under the provisions of the Gujarat Co-operative Societies Act, 1961, and/or under any other law. 7. On December 21, 1998, this court directed the respondent not to deal with their properties or encumber it or create any charge in any manner whatsoever. The respondent was also restrained from clearing any payments exceeding Rs. 10,000 per transaction except with the leave of the court excluding the salaries of the employees or payment of electricity, water charges and other payments to the revenue and tax authorities. By the said order, payment to the Bombay Mercantile Co-operative Bank Ltd. at the rate of Rs. 4 lakhs per month was also excluded from the operation of the said order. 8. It is submitted by Mrs. M. A. Shah, counsel for the petitioner that the respondent-company has not complied with the order passed by this court from time to time ; that even the Bombay Mercantile Co-operative Bank Ltd. has also dues amounting to more than Rs. 2 crores ; that the respondent-company is not in a position to pay the dues and that the respondent-company is not a going concern and all that they have been doing is only a job work, there is no way out except to order winding up of the respondent-company ; that even the balance-sheets of the respondent-company placed on record suggest the loss incurred every year. 9. It is submitted by Ms. Parul Patel for Mr. B. G. Jani, counsel for Bombay Mercantile Co-operative Bank Ltd., that the bank had filed Lavad Suit No. 6 of 2000, before the Registrar's Board of Nominees at Vadodara for the recovery of Rs. 9. It is submitted by Ms. Parul Patel for Mr. B. G. Jani, counsel for Bombay Mercantile Co-operative Bank Ltd., that the bank had filed Lavad Suit No. 6 of 2000, before the Registrar's Board of Nominees at Vadodara for the recovery of Rs. 1,57,43,135 and that the said suit has been decreed in favour of the bank ; that there is a charge in favour of the petitioner-bank in respect of all the properties of the respondent-company including the plant and machinery, land and building, stock-in-trade, etc. 10. It is submitted by M. R. N. Shah, learned counsel for the respondent-company that it is only because of financial difficulties the respondent-company is unable to pay the dues of the petitioner-company and mere inability to clear the dues is no reason to order winding up of the company. In support of his contention Mr. R. N. Shah has placed reliance on the decision in the case of Tata Iron and Steel Co. v. Micro Forge (India) Ltd. [2001] 1 GLR 1594. As regards the proposition of law laid down by the Division Bench in this decision, the same cannot be disputed. However, in the instant case admittedly, the respondent-company not only is not in a position to pay the dues, but also the balance-sheets placed on record suggest that the respondent-company is incurring loss every year and debts have been mounting. The liabilities of the respondent-company are not in dispute. In the case before the Division Bench, the company was a going concern and was showing profit and dividends were paid to its members/shareholders and there was a possibility of the company overcoming the financial crisis and setting out of the financial crunch. The ratio in the case of Tata Iron and Steel Co. v. Micro Forge (India) Ltd. [2001] 1 GLR 1594, in my opinion, would not be helpful to the present respondent-company inasmuch as the liabilities of the respondent-company are not disputed and the company is making losses successively and there is no ray of hope of company overcoming the financial crisis, the crunch. 11. Admittedly, the debts are not denied. In the reply to the statutory notice at page 44, the respondent-company has recorded its inability to effect the payment. In other words, the dues of the petitioner-company are not denied or disputed. 11. Admittedly, the debts are not denied. In the reply to the statutory notice at page 44, the respondent-company has recorded its inability to effect the payment. In other words, the dues of the petitioner-company are not denied or disputed. If the respondent-company is a going concern, it should be able to earn and make profit over passage of time. In the instant case, the respondent-company has been incurring losses every year. It is difficult to believe from the record that the respondent-company, as a matter of fact, is a running concern. From the facts emerging on the record, the respondent-company is indebted heavily and the dues are running into more than Rs. 21/2 crores and in view of the decree obtained by the Bombay Mercantile Co-operative Bank Ltd. in Lavad Suit filed by it against the respondent-company, there is a charge created with the bank and the same is registered with the Registrar of Companies under Section 132 of the Companies Act, it is sufficiently suggested from the record that the respondent-company is unable to discharge its financial liability and pay the claims of the creditors. The ingredients of Section 433 of the Companies Act are fully satisfied from the material on record. As observed earlier, the respondent-company cannot be said to be a going concern nor is there any hope of the respondent-company coming out of financial difficulty. Under the circumstances, I do not see any escape from the conclusion that the respondent-company is required to be wound up and the official liquidator attached to this court is appointed as the official liquidator of the respondent-company. 12. In view of the above, the petition deserves to be granted. I therefore pass the following order : The petition is granted. The respondent-company, Fleetweld (India) Ltd. 42/43, Tapovan Society, Nizampura, Vadodara, is hereby ordered to be wound up. The official liquidator attached to this court is appointed as the official liquidator and he shall take possession of all the assets of the respondent-company with all the powers under the provisions of the Indian Companies Act, 1956. No order as to costs. 13. Mr. R.N. Shah, learned counsel for the respondent-company, prays for staying the operation of this order to enable the respondent-company to prefer the appeal against this order. Mrs. M. A. Shah, counsel for the petitioner and Mr. No order as to costs. 13. Mr. R.N. Shah, learned counsel for the respondent-company, prays for staying the operation of this order to enable the respondent-company to prefer the appeal against this order. Mrs. M. A. Shah, counsel for the petitioner and Mr. B. G. Jani, counsel for Bombay Mercantile Co-operative Bank Ltd., object to the said prayer. The request for staying the operation of the order is rejected.