N. V. RAMANA, J. ( 1 ) M/s. Shristab Private Limited, a company incorporated under the Companies Act, 1956, having its office at Kota in Rajasthan, and represented by its Authorized Representative has filed this Company Petition under Sections 433 (e) and (f) and 439 of the Companies Act, 1956 r/w Rule 95 of the Companies (Court) Rules, 1959, praying for winding up of the respondent, namely M/s. Reaselack Polymers Private Limited, on the ground that the respondent is unable to pay its debts. The petitioner-company is engaged in the business of manufacture and sale of P. V. C. Stabilizers, Metallic Stearates, Olearates, Zinc Oxide "w-S", Stearic Acid etc. . It is the case of the petitioner that the respondent-company which is engaged in the manufacture of plastic goods, including containers, jars, bottles, polymers, chemicals, multi-player packaging products made of polythene, HDFE, LDFE, DP, PS and other allied products, approached the petitioner in the year 1998 with a request to supply chemicals. Upon discussions, an understanding was reached between the petitioner and the respondent whereby it was agreed that the petitioner would supply goods to respondent against "c" forms as per the Purchase Orders to be placed by the respondent from time to time and make payment on account basis. During course of time, a running account was developed between the parties, whereby the outstanding balance of the respondent of the previous year were carried forward to the next financial year. It is the case of the petitioner that during 1998-99, respondent placed orders for supply of chemicals valued at Rs. 16,20,198/- which the petitioner promptly supplied. The respondent having received the supplies, paid an amount of rs. 2,89,465/-, leaving a balance of Rs. 13,30,733/-, which was carried forward to the next financial year i. e. 1999-2000. During 1999, respondent again placed purchase Orders for supply of chemicals worth Rs. 3,282/-, and paid an amount of rs. 5,26,774/ -. Upon adjustment of the said amount, the outstanding dues of the respondent with interest thereon, was reduced to Rs. 10,35,905/-, which was carried forward to the next financial year. The petitioner submits that the respondent again placed Purchase Orders for supply of chemicals, and made part payment of Rs. 61,666/- by way of cheque No. 700742, dated 28-2-2002, which was adjusted towards the dues of the respondent. As on 31-3-2002, the outstanding balance of the respondent stood at Rs. 10,35,905/-, which was carried forward to the next financial year. The petitioner submits that the respondent again placed Purchase Orders for supply of chemicals, and made part payment of Rs. 61,666/- by way of cheque No. 700742, dated 28-2-2002, which was adjusted towards the dues of the respondent. As on 31-3-2002, the outstanding balance of the respondent stood at Rs. 15,92,807/- (principal Rs. 10,97,571/- and interest thereon at Rs. 4,95,236/- ). ( 2 ) THE petitioner states that the respondent acknowledged the liability vide their letter dated 19-2-1999 wherein it pleaded financial crunch and pleaded some time for making payment. That in spite of raising several debit notes and repeated requests to the respondent, the respondent failed to make the payment. Thereafter, when the petitioner addressed letter dated 20-5-2002 to the respondent to confirm the balance, else it would be presumed that the amount demanded is correct, the respondent in spite of having received the said letter, failed to reply. Thereupon, the petitioner got issued statutory legal notice dated 6-7-2002 under Sections 433 (e) and 434 of the Companies Act, 1956 (for short the Companies Act ) calling upon the respondent to clear the outstanding, but the same was returned unserved with a postal endorsement "not known, return to sender". Thereafter, the petitioner upon verifying the record with the registrar of Companies, got issued fresh legal notice dated 20-8-2002, which was sent to the present and previous registered offices and its offices at Nagpur and also to its Directors. Except the notices sent to the offices at Nagpur and some of the Directors of the respondent, all other notices returned unserved. However, the respondent failed to reply to the said notice. Hence, this Company petition by the petitioner for winding up of the respondent for realization of its dues. ( 3 ) THE respondent filed counter attacking the very maintainability of the Company petition stating that the petitioner does not come within the meaning of the term "creditor" as appearing in Sections 433 (e) and (f), 434 (1) (a) and 439 of the companies Act, and in any event, it is stated that the claim made by the petitioner is barred by limitation, and is therefore, unenforceable. Inasmuch as the invoices under which the petitioner supplied material to the respondent contains a clause to the effect that all disputes arising under the bills will be settled in the Courts at Kota in Rajasthan, the Courts in Andhra Pradesh, including this Court has no jurisdiction to entertain any dispute in respect of the bills, much less the Company Petition for winding up of the respondent. It is further stated that the petitioner has waived off his right to claim the alleged debt, and having regard to the fact that the petitioner had accepted for resolution of the disputes arising under the bills in the Courts at Kota in rajasthan, he is estopped from invoking the jurisdiction of the Courts in Andhra pradesh, including this Court. ( 4 ) THE respondent denied the contention of the petitioner that they have acknowledged the debt. The part payment, which the petitioner claims to have received from the respondent relates to the material supplied under the invoices dated 27-7-2001, 18-11-2001 and 12-12-2001. Inasmuch as the respondent is not liable to pay any amount, much less the principal amount, the question of paying any interest thereon, does not arise. It is further stated that the management of the respondent was taken over by a new management on 22-2-1999, and inasmuch as neither the petitioner supplied any material to the new management nor the new management benefited out of the supplies made by the petitioner, the question of the respondent being liable to pay any amount to the petitioner does not and cannot arise, and more so when the alleged debt which the petitioner is claiming relates to a period much prior to the taking over the respondent by the new management. ( 5 ) THE respondent came to know about the filing of the Company Petition only through their Bankers, to whom the petitioner had addressed a letter dated 18-12-2002 stating that they have filed a Company Petition for winding up of the respondent. In view of the said letter, the petitioner suffered irreparably, and the respondent had already taken steps against the petitioner claiming damages. In view of the said letter, the petitioner suffered irreparably, and the respondent had already taken steps against the petitioner claiming damages. The respondent states that the rival claims between the parties involve disputed questions of fact, and cannot be gone into by this Court in a petition for winding up of the respondent, and the remedy of the petitioner, if any, is to file a civil suit before the Court competent at Kota in Rajasthan. It is further contended that the respondent is a going concern and a profit making company, and is a part of Srivastava Group of Companies having a group turnover of Rs. 120. 00 crores, and if the respondent is ordered to be wound up, it will not only cause substantial loss to the employees, but also affect the national economy and will result in loss of revenue to the Government by way of sales tax and excise duty. The respondent thus prayed for dismissal of the company Petition. ( 6 ) THE petitioner filed reply-affidavit denying the stand taken by the respondent in their counter. The learned counsel for the petitioner while reiterating the averments made in the affidavit filed in support of the Company Petition and the reply-affidavit to the counter filed by the respondent submitted that the claim made by the petitioner is not barred by limitation inasmuch as there exists a running account between the petitioner and the respondent under which the dues payable by the respondent are carried forward to the next financial year. The petitioner denied the contention of the respondent that the petitioner made the last supplies during 1999 and submitted that the petitioner had, in fact, made the last supplies to the respondent during 2001 against the Purchase Orders placed by the respondent in 2001 for supply of material worth Rs. 61,666/ -. Inasmuch as there exists a running account between the petitioner and the respondent, the learned counsel submits that the petitioner is entitled to adjust the payment against any of the outstanding bills. The amount of rs. 61,666/- paid by the petitioner by way of cheque was adjusted against the outstanding dues of the respondent, particularly when there was no request made by the respondent for adjustment of the said amount against a particular invoice. As on 31-3-2002, the respondent was due in an amount of Rs. 15,92,807/- (Rs. 10,97,571/- towards principal and Rs. 61,666/- paid by the petitioner by way of cheque was adjusted against the outstanding dues of the respondent, particularly when there was no request made by the respondent for adjustment of the said amount against a particular invoice. As on 31-3-2002, the respondent was due in an amount of Rs. 15,92,807/- (Rs. 10,97,571/- towards principal and Rs. 4,95,236/- towards interest thereon) to the petitioner, and though the respondent vide its letter dated 19-2-1999 had admitted its liability, it had not made the payment. The petitioner though in its letter dated 20-5-2002 made it clear to the respondent that if it fails to deny the liability, the dues would be deemed to have been admitted, the respondent in spite of receiving the said letter failed to respond. When the respondent failed to pay the dues, the petitioner got issued statutory notice dated 6-7-2002, and as the said notice was returned unserved, the petitioner got issued fresh notice dated 20-8-2002, which was served at the offices of the respondent at Nagpur and on some of its Directors, but the notice sent to the present and previous registered office of the respondent were returned with a postal endorsement "no such office in this address, hence return to sender". The learned counsel for the petitioner submits that though the second notice was served at the offices of the respondent at Nagpur and on some of Directors, the respondent failed to make any payment. Therefore, the petitioner was constrained to file this Company Petition for realization of its dues. The learned counsel for the petitioner denied the contention of the respondent that the petitioner is not a creditor of the respondent and that the respondent is a going and profit making concern. The learned counsel for the petitioner submits that mere change in the management of the respondent does not absolve the respondent of clearing the dues of its creditors, and more so when the supplies were made to the respondent and not to its management. The learned counsel for the petitioner while not disputing the fact that disputes in relation to the bills can only be settled in Kota Courts in Rajasthan, submitted that by itself does not mean that the petitioner has to initiate winding up proceedings only in Rajasthan High Court. The learned counsel for the petitioner while not disputing the fact that disputes in relation to the bills can only be settled in Kota Courts in Rajasthan, submitted that by itself does not mean that the petitioner has to initiate winding up proceedings only in Rajasthan High Court. Inasmuch as the registered office of the respondent is located at Hyderabad in Andhra Pradesh, he submits that the petitioner has to file Company Petition for winding up of the respondent only in this Court. Inasmuch as the respondent failed to make arrangements for receipt of notices, it cannot contend that it is not aware of the winding up proceedings, and more particularly when the notices were served on its offices at Nagpur and some of its Directors. The contention of the respondent that it has suffered loss of Rs. 11,00,000/- by reason of the letter addressed by the petitioner to the bankers of the respondent is denied, and it is submitted that as the respondent failed to receive the notices, they were forced to address the bankers of the respondent. ( 7 ) PER contra, the learned counsel for the respondent sought to attack the very maintainability of the Company Petition. He contends that the management of the respondent company was taken over by the new management. The alleged debt which the petitioner is claiming relates to the period prior to the new management taking over the reins of the respondent. The petitioner has not supplied any material to the new management nor the new management benefited out of the supplies made by the petitioner, and therefore, the question of the respondent headed by the new management, liable to pay the alleged debt to the petitioner, does not and cannot arise. The respondent had not admitted the debt as alleged by the petitioner. The admission of alleged debt by letter dated 19-2-1999, was made in relation to M/s. Asian Organo Industries, and not the petitioner, and therefore, the petitioner cannot lay any foundation on such a letter, which was not addressed to them he further contends that the petitioner does not come within the meaning of the term "creditor" as appearing in Sections 433 (e) and (f), 434 (1) (a) and 439 of the companies Act, and therefore, the alleged debt claimed by the petitioner is not an enforceable debt. It is contended that according to the own showing of the petitioner, the petitioner claims that he had supplied material through a running account. The petitioner filed the Company Petition on 23-10-2002. The petitioner claims - that he made the last supplies to the respondent on 15-2-1999, respondent admitted the dues of the petitioner on 19-2-2002, and part payment was made by the respondent to the petitioner on 12-6-2002, and if all the three dates are taken into account for computing the period of limitation, the alleged dues claimed by the petitioner in this Company Petition would be barred by limitation for the Company Petition to be maintainable, the petitioner ought to have filed the Company Petition either on 14-2-2002, 18-2-2002 or 11-6-2002. The learned counsel for the respondent in support of his submission that Company Petition in relation to a time-barred debt is not maintainable, placed strong reliance on the judgements of this Court in M/s. Poddar Projects ltd. v. M/s. Krishna Metal Industries Pvt. Ltd. 1, Punjab and Haryana High Court in bombay House v. New Model Industries2 and Madras High Court in Vijayalakshmi Art prodns. v. Vijaya Prodns. 3. ( 8 ) THE learned counsel for the respondent placing reliance on Section 113 of the transfer of Property Act, 1882 and Sections 115 and 116 of the Indian Evidence act, 1872, submitted that the petitioner has waived of his right to claim the alleged debt, and inasmuch as he has agreed for settlement of disputes if any arising in relation to the material supplied under the invoices in the Courts at kota in Rajasthan, the petitioner is estopped from invoking the jurisdiction of this Court, and in support of this submission, he placed reliance on the judgement of the apex Court in Associated Hotels of India v. Ranjit Singh4. The learned counsel for the respondent submits that parties by agreement cannot confer jurisdiction upon Courts not possessed by them, but an agreement to the effect that one of the Courts having jurisdiction alone shall try the dispute is not opposed to public policy, placed reliance on the judgement of the apex Court in Hakim Singh v. M/s. Gamma (India) Ltd. 5. In support of his submission that vesting of jurisdiction in relation to a dispute arising out of a contract in one of the Courts within whose jurisdiction cause of action arises, is not opposed to public policy, the learned counsel placed reliance on the judgement of the apex Court in ABC Laminart Private Limited v. A. P. Agencies6. Heard the learned counsel for the petitioner and the learned counsel for the respondent. ( 9 ) THIS Court on 30-10-2002, ordered notice before admission. The petitioner having taken out notice, filed affidavit stating that the notice sent to the registered office of the respondent at Hyderabad returned unserved, while the notice sent to the Nagpur office of the respondent was served. Thereupon, this Court on 26-11-2002, at the request of the petitioner, ordered substituted service by way of paper publication in Vaartha a Telugu daily. The petitioner having taken out substituted service by way of paper publication, filed proof thereof. While so, on 7-1-2003, the respondent entered its appearance through a counsel. Thereafter the matter was adjourned on thirteen occasions. On 27-10-2003, it was reported by both the counsel that negotiations for an out of Court settlement are going on and requested time, and at their request, the matter was adjourned to 3-11-2003, on which day it was again adjourned to 10-11-2003. However, it was reported by the counsel that the negotiations between the parties failed. Hence, the matter was heard on merits. There can be no dispute on the propositions of law and the reliance placed by the learned counsel for the respondent on the judgements of various courts in support of his submissions. But it may be noticed that in the instant case, it is the specific case of the petitioner that the respondent in spite of receiving the letters addressed by the petitioner to the respondent demanding the outstanding dues, has neither responded nor made the payment. The petitioner though by letter dated 20-5-2002 made it clear to the respondent that if it fails to respond, it would amount to its admitting the liability, the respondent having received the said letter, has neither responded not made the payment. The first statutory notice dated 6-7-2002 sent by the petitioner to the respondent to their registered office returned unserved. The petitioner though by letter dated 20-5-2002 made it clear to the respondent that if it fails to respond, it would amount to its admitting the liability, the respondent having received the said letter, has neither responded not made the payment. The first statutory notice dated 6-7-2002 sent by the petitioner to the respondent to their registered office returned unserved. Though the second notice dated 20-8-2002 sent by the petitioner to the previous and present registered offices of the respondent returned unserved, but the same was served at the offices and Directors at Nagpur. It, therefore, cannot be said that the respondent was not aware of the winding up proceedings initiated by the petitioner and that it came to know of the winding up proceedings only through their bankers to whom the petitioner had addressed a letter stating that a winding up petition has been filed against the respondent. Though the respondent denied that it is liable to pay any amount to the petitioner, but in spite of receiving the letters addressed by the petitioner demanding payment of its dues, the respondent failed to respond either accepting or rejecting the claim made by the petitioner in the said letters. However, on 27-10-2003, when the matter came up for hearing, it was submitted by the learned counsel for both the sides that negotiations are going on for settlement out of court and sought adjournment. Unless there are disputes between the parties, there should be no occasion for the respondent to negotiate with the petitioner for a settlement out of court. This apart, the petitioner had produced a letter dated 19-2-1999 addressed by the respondent to M/s. Asian Organo Industries, which discloses that the respondent is facing severe financial crunch, and they are unable to keep up their commitment. All these factors suggest that the respondent is unable to pay the dues of its creditors. In that view of the matter, respondent cannot be allowed to contend that the petitioner is not a creditor and it is not liable to pay them any amount, much less the amount claimed by the petitioner in the Company Petition, and as such, the petitioner is not entitled to maintain this Company Petition for winding up of the respondent for realization of its dues. ( 10 ) THOUGH the respondent contends that the petitioner made the last supplies during 1999, it is the specific case of the petitioner that it made the last supplies to the respondent in 2001, and that the part payment of Rs. 61,666/- made by the respondent by way of cheque dated 28-2-2002, was adjusted against the total outstanding dues of the respondent, and not against the supplies made in 2001, and more so when there was no request made by the respondent to adjust the said amount against the supplies made in 2001. This apart, it is the admitted case of the respondent that there exists a running account between the petitioner and the respondent in respect of the supplies made by it to the respondent. When once it is admitted by the respondent that there exists a running account in respect of the supplies made by the petitioner, it is always open for the petitioner to adjust the payment made by the respondent against its total outstanding dues unless there is a request from the respondent to adjust the payment against a particular bill or invoice. Be that as it may, whether the petitioner had appropriated the part payment made by the respondent towards the supplies made by them in the year 1999 or 2001 and whether the claim of the petitioner is barred by limitation, is a matter for enquiry and cannot be conclusively decided on the basis of the rival dates furnished by the parties in support of their respective cases. They are matters for enquiry, and unless the company Petition is admitted, and the respective parties adduce evidence in support of their respective claims, it cannot be said that the dues claimed by the petitioner are barred by limitation or that the petitioner had waived its right to lay claim against the respondent. They are matters for enquiry, and unless the company Petition is admitted, and the respective parties adduce evidence in support of their respective claims, it cannot be said that the dues claimed by the petitioner are barred by limitation or that the petitioner had waived its right to lay claim against the respondent. ( 11 ) THE contention of the respondent that the management of the respondent was taken over by the new management on 22-9-2002, and inasmuch as the alleged debt claimed by the petitioner relates to the transactions between the petitioner and the respondent prior to the taking over of the respondent by the new management, and the petitioner having not supplied any material to the new management nor the new management having benefited out of the supplies made by the petitioner, is not liable to pay the alleged dues of the petitioner, cannot be accepted. A company incorporated under the Companies Act has a separate legal entity distinct from its Members and Directors and has a perpetual succession and existence. The Members and Board of Directors of a company may change, retire or cease to hold office, but that by itself does not absolve the company, of paying up the dues of its creditors, though its Members and Board of Directors may change from time to time. The affairs of a company are conducted by the board of Directors by and in the name of the company and not in the names of the individuals, who control the reins of the company. When there is change in the management of a company, the assets and liabilities are taken over and controlled by the succeeding management, and it does not lie in the mouth of the succeeding management, which has taken over the management of the company from the old management to contend that it is not liable to pay up the dues of the creditors of the company on the ground that the supplies were made to the old management and not to the new management. If such a submission is to be accepted, every company, which owes to its creditors, will conveniently change its management, so as to deny payment of the legitimate dues to their creditors. If such a submission is to be accepted, every company, which owes to its creditors, will conveniently change its management, so as to deny payment of the legitimate dues to their creditors. In that view of the matter, the contention of the respondent that it is not liable to pay up the dues incurred under the old management, is liable to be rejected. ( 12 ) THE contention of the respondent that inasmuch the invoices dated 17-8-1998 to 15-2-1999, under which the petitioner has supplied material contains a clause to the effect that "all the disputes arising under the bills will be settled in kota Court only, situated in the State of Rajasthan", the Courts in Andhra pradesh, including this Court has no jurisdiction to entertain Company Petition also cannot be accepted. Section 146 of the Companies Act deals with Registered Office of Company, and it reads thus: 146. (1) A company shall, as from the day on which it begins to carry on business, or as from the thirtieth day after the day of its incorporation, whichever is earlier, have a registered office to which all communications and notices may be addressed. (2) Notice of the situation of the registered office, and of every change therein, shall be given within thirty days after the date of the incorporation of the company or after the date of the change, as the case may be, to the registrar who shall record the same: provided that except on the authority of a special resolution passed by the company, the registered office of the company shall not be removed - (a) in the case of an existing company, outside the local limits of any city, town or village where such office is situated at the commencement of this Act, or where it may be situated later by virtue of a special resolution passed by the company; and (b) in the case of any other company, outside the local limits of any city, town or village where such office is first situated, or where it may be situated later by virtue of a special resolution passed by the company. (3) The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by sub-section (2 ). (3) The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by sub-section (2 ). (4) If default is made in complying with the requirements of this section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to fifty rupees for every day during which the default continues. ( 13 ) A bare perusal of the aforementioned provision would disclose that for the purpose of addressing communications and notices, a company shall have a registered office, and if there is any change in the location of the registered office, the same shall have to be intimated to the Registrar who shall record the same. It is the case of the petitioner that in spite of their addressing several letters to the respondent demanding payment for the materials supplied by them, the respondent has neither responded nor paid the amount and on the other hand its has changed its management. It is not known whether the respondent has intimated the change of its registered office to the Registrar for recording the same. The registered office of the respondent is undisputedly located at Hyderabad, and having regard to the well settled law that a petition for winding up of a company under Section 433 of the Companies Act can be filed only where the registered office of that company is located, the petitioner invoked the jurisdiction of this Court. It is not the case of the respondent that its registered office is located elsewhere and is not within the jurisdiction of this Court. When once it is admitted by the respondent that its registered office is located at Hyderabad, then this Court is well within its jurisdiction to entertain the Company Petition filed by the petitioner for winding up of the respondent on the ground that it is unable to pay its debts. In that view of the matter, the contention of the respondent that only the courts at Kota in Rajasthan have jurisdiction to entertain dispute with respect to the bills, is liable to be rejected, and it is accordingly rejected. In that view of the matter, the contention of the respondent that only the courts at Kota in Rajasthan have jurisdiction to entertain dispute with respect to the bills, is liable to be rejected, and it is accordingly rejected. Though the respondent contends that the petitioner supplied the materials to the old management and not to the new management and therefore the new management is not liable to pay the dues of the old management, the same is a matter for enquiry, and unless the respective parties let in their evidence in support of their respective cases, no concrete finding can be given. Therefore, it is a fit case where the Company Petition has to be admitted. ( 14 ) IN the above premises, the petitioner has made out a prima-facie case for admission of the Company Petition on the ground that the respondent is unable to pay its debts. Hence the Company Petition is admitted. The petitioner is directed to take out newspaper publication of the admission of the Company petition as required under Rule 99 of the Companies (Court) Rules, 1959 in two daily newspapers, namely "deccan Chronicle" (English) and "andhra Jyothi" (Telugu) of Hyderabad edition, and file proof of service into Court. However, having regard to the submission made by the learned counsel for the respondent during the course of arguments that in the event the Company Petition is to be admitted, the respondent without prejudice to his rights and contentions is ready and willing to deposit the entire disputed amount before this Court, it is appropriate that the respondent should be directed to deposit the entire disputed amount to the credit of the Company Petition before the Registrar of this Court. The publication of the notice of admission of the Company Petition to enable the respondent to deposit the disputed amount and prove his bona fides, is deferred until further orders. Post on 20-1-2004. In the meanwhile, the respondent is directed to deposit the entire disputed amount to the credit of the Company Petition before the registrar (Judicial) of this Court.