JUDGMENT : ANIL K. NARENDRAN, J. 1. This appeal arises out of the judgment of the learned Company Judge of this Court dated 03/07/2014 in CP No. 32 of 2012, a petition filed by the Kerala State Industrial Development Corporation Ltd., the 1st respondent herein, under Section 433 of the Companies Act, 1956 (hereinafter referred to as 'the Act') seeking an order to wind-up M/s. Fresh Coconut Products Ltd., the 1st appellant herein, under the provisions of the Act. By the said judgment, the learned Company Judge allowed the petition and the 1st appellant company was ordered to be wound-up and the Official Liquidator attached to this Court, the 2nd respondent herein, was appointed as the Liquidator to wind-up the company, who was directed to takeover its assets and records forthwith. The 1st respondent corporation was directed to pay an amount of Rs. 20,000/- to the Official Liquidator towards initial expenses and was further directed to publish the order of winding-up and comply with other statutory requirements. Aggrieved by the aforesaid judgment of the learned Company Judge, the appellants, namely, the company ordered to be wound-up and its Ex-Managing Director are before this Court in this appeal, under Section 483 of the Act. 2. During the pendency of this appeal, the Official Liquidator initiated various proceedings against the Ex-Directors of the company, including Criminal Complaint No. 3 of 2015 under Section 454(5) of the Act, alleging default in filing Statement of Affairs as contemplated under Section 454(1) of the Act. At that juncture, the appellants filed IA No. 2885 of 2015 in this appeal, seeking an order of stay of all pending proceedings in CP No. 32 of 2012, pursuant to the order of winding up dated 03/07/2014, contending that, the proceedings initiated by the Official Liquidator will only scuttle the settlement efforts taken by them with the 1st respondent corporation and further ruin the scope of revival of the company with the assistance of an external investment partner, who evinced keen interest in the revival of the company. 3. By an order dated 19/08/2015 in IA No. 2885 of 2015, this Court granted stay of all further proceedings in CP No. 32 of 2012, pursuant to the order of winding up passed by the learned Company Judge dated 03/07/2014, until further orders. 4. 3. By an order dated 19/08/2015 in IA No. 2885 of 2015, this Court granted stay of all further proceedings in CP No. 32 of 2012, pursuant to the order of winding up passed by the learned Company Judge dated 03/07/2014, until further orders. 4. On 14/01/2016, the appellants filed IA No. 141 of 2016 in this appeal, seeking an order to take on record the settlement arrived at between the 1st appellant company and the 1st respondent corporation and accordingly dismiss CP No. 32 of 2012, directing the Official Liquidator to hand over the assets, effects and records to the 1st appellant company forthwith. The said interlocutory application was filed on the assertion that, the 1st appellant company has already settled the claim of the 1st respondent corporation by making a payment of Rs. 32,02,500/- on 14/12/2015, by way of One Time Settlement. Similarly, it has cleared the liability due towards ICICI Bank Ltd. by making a further payment of Rs. 35,00,000/-, by way of One Time Settlement. It is also averred in the accompanying affidavit that, as on the date of filing of that interlocutory application the 1st appellant company has no creditors and therefore the winding up petition filed by the 1st respondent corporation lost its relevance. As such the appeal is liable to be allowed, setting aside the order of winding up, since the 1st appellant company is now free from all liabilities and the Official Liquidator is bound to return the assets and effects of the company since they are not liable to be distributed among any creditors of the company. 5. We heard the arguments of the learned counsel for the appellants, the learned Standing Counsel for the 1st respondent corporation and also the learned Standing Counsel for the Official Liquidator. 6. The pleadings and materials on record would indicate that, the Company Petition filed by the 1st respondent corporation is one invoking the provisions of Section 433(e) read with Sections 434(c) and 439(b) of the Act. It is alleged in the Company Petition that, the 1st appellant company availed a term loan of Rs. 80,00,000/- and share capital assistance of Rs. 4,88,000/- from the 1st respondent corporation. It is alleged in the Company Petition that, the 1st appellant company availed a term loan of Rs. 80,00,000/- and share capital assistance of Rs. 4,88,000/- from the 1st respondent corporation. Though commercial production in the plant of the 1st appellant company at Kaduppissery in Thrissur District was started in the year 1998, the unit did not generate operational surplus, in order to meet repayment obligations and other commitments. The 1st appellant company committed default in repayment of the loan amount and the interest accrued thereon and the 1st respondent corporation took over the assets of the unit on 22/12/2001, under Section 29 of the State Financial Corporations Act, 1951. Though the unit was advertised for sale several times, there were no prospective buyers. In order to recover the loan amount and the interest accrued thereon, the 1st respondent corporation initiated revenue recovery proceedings against the guarantors, for recovering an amount of Rs. 2,25,03,639/- due as on 31/07/2002. According to the 1st respondent corporation, the total amount outstanding as on 30/06/2012 comes to Rs. 15,89,47,620/-. 7. Along with the Company Petition, the Annual Return and Audited Balance Sheet of the 1st appellant company for the year 2010 was produced of Annexure-B. The report of the Auditors, which forms part of the Profit and Loss Account for the year ended on 31/03/2010, would show that the company has defaulted repayment of term loan of Rs. 1,10,19,224/- (sanctioned limit Rs.80,00,000/-) availed from the 1st respondent corporation, Rs. 1,03,14,647/- (sanctioned limit Rs. 38,00,000/-) availed from ICICI Bank Ltd. and Rs. 14,76,238/- out of cash credit limit of Rs. 38,00,000/- borrowed from the State Bank of Travancore. In Schedule II to the Profit and Loss Account, the liability of the 1st appellant company in respect of the term loan availed from the 1st respondent corporation is shown as Rs. 1,10,19,224/- and the liability towards ICICI Bank Ltd. is shown as Rs. 1,03,14,647/-. In the said schedule, the liability towards State Bank of Travancore is shown as Rs. 14,76,236.37. 8. One of the main contentions raised on behalf of the appellants is that, as on the date of presentation of the company petition, i.e., as on 28/09/2012, the debt due to the 1st respondent corporation had become time barred and as such, the learned Company Judge ought to have dismissed the Company Petition on that sole ground. 9. 14,76,236.37. 8. One of the main contentions raised on behalf of the appellants is that, as on the date of presentation of the company petition, i.e., as on 28/09/2012, the debt due to the 1st respondent corporation had become time barred and as such, the learned Company Judge ought to have dismissed the Company Petition on that sole ground. 9. In a winding up petition filed by a creditor, invoking the provisions of Section 433(e) of the Act, the petitioning creditor has to satisfy the Court that the debt on which such petition is based was due and payable as on the date of presentation of that petition. Therefore, a time barred debt cannot be the basis of a winding up petition. However, admission of a debt in the balance sheet of the company would amount to acknowledgement, extending the period of limitation. In other words, acknowledgement of liability in the balance sheet extends the period of limitation. 10. Section 18 of the Limitation Act, 1963 deals with effect of acknowledgement in writing. Section 18(1) of the said Act provides that, where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. 11. In the instant case, Annexure-B Audited Balance Sheet of the 1st appellant company for the year ended on 31/03/2010 would make it explicitly clear that the liability of the said company in respect of the term loan availed from the 1st respondent corporation was acknowledged in writing in its Audited Balance Sheets till the year 2010. In view of the acknowledgement of liability so made in Annexure-B Audited Balance Sheet for the year ended on 31/03/2010, the debt referred to in the Company Petition was due and payable as on the date of presentation of that petition, i.e., as on 28/09/2012. As such, the contention of the appellants that, the debt due to the 1st respondent corporation had become time barred as on the date of presentation of the winding up petition can only be repelled. 12. As such, the contention of the appellants that, the debt due to the 1st respondent corporation had become time barred as on the date of presentation of the winding up petition can only be repelled. 12. Another contention raised on behalf of the appellants is that, the 1st respondent corporation filed the winding up petition without service of notice, as contemplated under Section 434(1)(a) of the Act and as such, the learned Company Judge ought not to have entertained the Company Petition. 13. Section 433 of the Act deals with the circumstances in which a company may be ordered to be wound-up by Court. As per Section 433(1)(e) of the Act, a company may be wound-up by the Court, if the company is unable to pay its debts. Section 434 of the Act deals with the circumstances in which the company shall be deemed unable to pay its debts. Section 434 of the Act reads thus; "434. Company when deemed unable to pay its debts.— (1) A company shall be deemed to be unable to pay its debts-- (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one lakh rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, 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; (b) if execution or other process issued on a decree or order of any Court or Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part; or (c) if it is proved to the satisfaction of the Tribunal that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Tribunal shall take into account the contingent and prospective liabilities of the company. (2) The demand referred to in Clause (a) of sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm." 14. It is trite law that, in order to maintain an application under Section 433(1)(e) of the Act, the creditor has to establish that, (i) the company owed him a debt exceeding Rs. 1,00,000/-, and (ii) the company has reached the stage of commercial insolvency and is unable to pay its debts. In order to invoke the presumption of insolvency under Section 434(1)(a) of the Act, the creditor has to establish that, he has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum exceeding Rs. 1,00,000/- and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to his reasonable satisfaction. Therefore, in order to maintain an application for winding up, under Section 433(1)(e) of the Act, invoking the presumption under Section 434(1)(a) of the Act, it is mandatory for the creditor to have the statutory notice, as contemplated under Section 434(1)(a) of the Act, delivered at the registered office of the company. The presumption of insolvency can be drawn, if the company neglected to pay the sum mentioned therein within three weeks thereafter, which presumption can be rebutted by the company by raising a bona fide dispute. 15. However, the failure in serving a statutory notice as contemplated under Section 434(1)(a) of the Act, does not disentitle a creditor to maintain an application for winding up under Section 433(1)(e) of the Act, if he succeeds in proving to the satisfaction of the Court that the company is unable to pay its debts. In such cases, in determining whether the company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company; that is the mandate of Section 434(1)(c) of the Act. In such cases, in determining whether the company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company; that is the mandate of Section 434(1)(c) of the Act. In such cases, there is no requirement of sending any notice to the company, prior to the filing of the petition for winding up. In other words, even if the petitioning creditor has not fulfilled the requirement of serving a statutory notice, as contemplated under Section 434(1)(a) of the Act, he can maintain an application for winding up, if he succeeds in proving to the satisfaction of the Court, based on the pleadings and materials on record that the company has reached the stage of insolvency and it is unable to pay its debts. 16. In the instant case, as borne out from the pleadings in the Company petition, the 1st appellant company availed term loan and share capital assistance to the tune of several lakhs from the 1st respondent corporation. The unit of the 1st appellant company did not generate operational surplus, in order to meet repayment obligations and other commitments. In view of the default committed in repayment of the loan amount and the interest accrued thereon, the 1st respondent corporation took over the assets of the unit on 22/12/2001, under Section 29 of the State Financial Corporations Act, 1951. These facts are not disputed by the appellants. According to the 1st respondent corporation, the total amount outstanding as on 30/06/2012 comes to Rs. 15,89,47,620/-. 17. The report of the Auditors, which forms part of Annexure-B Audited Balance Sheet of the 1st appellant company for the year 2010, would show that the company has defaulted repayment of the term loans availed from the 1st respondent corporation, ICICI Bank Ltd. and the cash credit limit availed from the State Bank of Travancore. In Schedule II to the Profit and Loss Account, the liability of the 1st appellant company in respect of the term loan availed from the 1st respondent corporation is shown as Rs. 1,10,19,224/-; the liability towards ICICI Bank Ltd. is shown as Rs. 1,03,14,647/-; and the liability towards State Bank of Travancore is shown as Rs. 14,76,236.37. In Schedule II to the Profit and Loss Account, the liability of the 1st appellant company in respect of the term loan availed from the 1st respondent corporation is shown as Rs. 1,10,19,224/-; the liability towards ICICI Bank Ltd. is shown as Rs. 1,03,14,647/-; and the liability towards State Bank of Travancore is shown as Rs. 14,76,236.37. The financial position of the 1st appellant company, as reflected in Annexure-B Audited Balance Sheet for the year 2010, shows that the assets of the company are insufficient to meet its liabilities including contingent and prospective liabilities. As evident from the Audited Balance Sheet, the company did not have assets to discharge its liability. Since the 1st respondent corporation has succeeded in proving that the 1st appellant company has reached the stage of commercial insolvency and is unable to pay its debts, the learned Company Judge cannot be found fault with in entertaining the petition for winding up and ordering the 1st appellant company to be wound-up. 18. In the result, we find absolutely no valid grounds to interfere with the order of winding up passed by the learned Company Judge. 19. The learned counsel for appellants would then contend that, the 1st appellant company has already settled the claim of the 1st respondent corporation by making a payment of Rs. 32,02,500/- on 14/12/2015 and that, as on the date of filing of IA No. 141 of 2016, the 1st respondent company has no creditors. As such, this appeal may be allowed, setting aside the order of winding up and the Official Liquidator may be directed to return the assets and effects of the company. 20. Once a petition for winding up is advertised in terms of Rule 99 of the Companies (Court) Rules, 1959, in the manner provided by Rule 24 of the said Rules, the winding up proceedings acquire a representative character, which cannot be disposed of on the basis of the terms of settlement between the petitioning creditor and the respondent company. Similarly, an order of winding up passed and advertised in terms of Rule 113 of the said Rules, in the manner provided there under, cannot be set aside in an appeal filed under Section 483 of the Act, on the ground that subsequent to the order of winding up the company has settled the liability of the petitioning creditor or others. Further, unless and until it is proved to the satisfaction of the Court that, the entire liability of the company towards its creditors, workers and also the statutory dues, if any, are discharged, the Official Liquidator cannot be directed to return the assets and effects of the company ordered to be wound-up. 21. It is pertinent to note that, during the pendency of this appeal, the Official Liquidator initiated various proceedings against the Ex-Directors of the company, including Criminal Complaint No. 3 of 2015 under Section 454(5) of the Act, alleging default in filing Statement of Affairs, as contemplated under Section 454(1) of the Act. It was at that juncture that, the appellants filed IA No. 2885 of 2015 in this appeal, contending that the proceedings initiated by the Official Liquidator will only scuttle the settlement efforts taken by them with the 1st respondent corporation and further ruin the scope of revival of the company with the assistance of an external investment partner who evinced keen interest in the revival of the company. On that interlocutory application, this Court by order dated 19/08/2015 granted stay of all further proceedings in CP No. 32 of 2012 pursuant to the order of winding up passed by the learned Company Judge dated 03/07/2014, until further orders. As such, the Official Liquidator could not proceed further with Criminal Complaint No. 3 of 2015. If the appellants want to revive the company it is for them to move an appropriate application before the learned Company Judge in accordance with law. The learned counsel for the appellants would submit that, the appellants shall move an appropriate application before the learned Company Judge for revival of the 1st appellant company. In such circumstances, without prejudice to the right of the appellants move an appropriate application before the learned Company Judge for revival of the 1st appellant company, this appeal and IA No. 141 of 2016 are closed.