JUDGMENT : Suman Shyam, J. 1. Heard Mr. G.N. Sahewalla, learned senior counsel appearing for the company petitioner. I have also heard Mrs. M. Hazarika, learned senior counsel representing the respondent company. This application has been filed under Section 433 read with Sections 434 and 439 of the Companies Act, 1956, praying for winding up of the respondent company on account of its inability to pay the admitted debt. 2. The brief facts of the case, as projected through the pleadings, is that the petitioner is a private limited company and is engaged in business as broker, commission agent, packers, stockist etc. The petitioner had a cordial business relationship with the respondent and taking advantage of such relationship, the respondent had made a request for temporary financial accommodation from the petitioner company so as to tide over its immediate financial needs. Acting on such request, the Chairman of the petitioner company had placed a proposal based on which a resolution was adopted in the meeting of the Board of Directors of the Company to the effect that the petitioner company would provide temporary financial accommodation of Rs. 50,00,000/- (Rupees Fifty Lakhs) to the respondent, for a period of four months, at an agreed rate of interest. It is the case of the petitioner that the rate of interest was initially agreed as 10% per annum but was later reduced to 9% per annum. Accordingly, the amount of Rs. 50,00,000/- was paid to the respondent but after the expiry of four months, when the respondent had failed to repay the amount as per agreed terms, the petitioner company had issued a notice dated 9.2.2016 under Section 434 of the Companies Act, 1956 demanding payment of an amount of Rs. 55,84,384/- inclusive of interest due as on that date. Upon receipt of the notice dated 09.02.2016 the respondent had not denied its liability but had issued a letter dated 23.02.2016 requesting for discussions to be held so as to arrive at an amicable settlement of the dispute between the parties, but thereafter, nothing concrete was done in the matter by the respondent as a result of which the petitioner has approached this Court by filing the instant petition under Section 433, 434 and 439 of the Companies Act, 1956 seeking an order for winding up of the respondent company. 3. Mr. 3. Mr. G.N. Sahewalla, learned senior counsel appearing for the petitioner, submits that in this case, the liability of the respondent is admitted and the said fact would be established from a bare perusal of the Bank statements, TDS certificates of the respondent company as well as the statements issued by the respondent from time to time acknowledging the debt. Besides the above, submits Mr. Sahewalla, the loan taken from the petitioner company is also reflected in a consolidated form in the audited balance sheet of the company. Under the circumstances, submits Mr. Sahewalla, the present is a fit case for issuing an order of winding up as the respondent company has neglected and/or failed to pay its admitted debt. 4. Mrs. M. Hazarika, learned senior counsel appearing for the respondent company, on the other hand, contends that although her client is not contesting the claim on merit, yet, according to her, the petition is not maintainable on the ground of being barred by law of limitation. The learned senior counsel further submits that in view of clauses 8 and 9 contained in the memorandum of association of the petitioner company, which indicates that the company's business activities includes investments of money for financial gain, the loan advanced to the respondent company must be treated as an act of money lending coming within the fold of Assam Money Lenders Act, 1934. By referring to Section 7-B of the Act of 1934, Mrs. Hazarika submits that every per son who carries on business of money lending, must get himself registered under the Act failing which he would not be entitled to institute any suit for recovery of loan. She submits that the provisions of Section 7-B read with 7-D of the Act of 1934 would have direct application in the facts and circumstances of the present case and as such, further proceeding in this petition be deferred till such time the petitioner obtains necessary registration under the Act of 1934. In support of her aforesaid contention, Mrs. Hazarika has placed heavy reliance on a decision of this Court rendered in the case of Ramdeo Ranglal Vs. Ghooronia Tea Co. (P) Ltd., reported in (2004) 2 GLT 1298. 5. I have considered the submissions made by learned counsel for the parties and have also perused the materials brought on record. 6. In support of her aforesaid contention, Mrs. Hazarika has placed heavy reliance on a decision of this Court rendered in the case of Ramdeo Ranglal Vs. Ghooronia Tea Co. (P) Ltd., reported in (2004) 2 GLT 1298. 5. I have considered the submissions made by learned counsel for the parties and have also perused the materials brought on record. 6. From a careful examination of the pleadings, it is apparent that the respondent has not denied receipt of the amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) from the petitioner company nor has it disputed the liability to repay the same along with interest at the rate of 9% per annum. The first ground on which the respondent has sought to resist the winding up petition is on the ground of law of limitation by contending that the transaction having taken place in the year 2010, the Company Petition filed before this Court on 25.05.2016 is beyond the period of three years and hence, was barred by limitation. 7. The petitioner company has brought on record a copy of the Bank statement to show that the amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) was transferred in the account of the respondent company on 15.11.2010 and on 16.11.2010 in two installments of Rs. 25,00,000/- each. The respondent had also issued a receipt acknowledging receipt of the said amount which is available as Annexure-7 to the company petition. It further appears from the record that the respondent company had regularly deposited TDS on the interest component payable to the petitioner on the amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) at the rate of 9% per annum and such TDS have been regularly deposited upto the financial year 2015-16. The petitioner has also brought on record the excerpts of the ledger account of the respondent company issued on 01.04.2013, 01.04.2014 and 1.4.2016, whereby the loan amount of Rs. 50,00,000/- interest component of Rs. 4,50,000/- per annum as well as the annual TDS of Rs. 45,000/- has been duly reflected. Not only that, the respondent had also issued two cheques dated 06.03.2013 and 07.03.2013 in favour of the petitioner company so as to repay the amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) taken by it on loan but had issued instruction to the petitioner not to place those cheques before the Bank for clearance. 8. 45,000/- has been duly reflected. Not only that, the respondent had also issued two cheques dated 06.03.2013 and 07.03.2013 in favour of the petitioner company so as to repay the amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) taken by it on loan but had issued instruction to the petitioner not to place those cheques before the Bank for clearance. 8. In a decision rendered by the Full Bench of the Gujarat High Court in the case of Hindustan Apparel Industries Vs. Fair Deal Corporation reported in 2000 (2) G.L.H. 484 relied upon by Mr. Sahewalla it has been observed that a cheque is undoubtedly an acknowledgement of right or debt or liability. The said observation was made after taking note of the decision of the Supreme Court rendered in the case of I.T. Commissioner Vs. M/s. Ogale Glass Works Ltd. reported in AIR 1954 SC 429 . 9. In another decision of the Allahabad High Court rendered in the case of Khaitan Overseas and Finance Ltd. Vs. State of Allahabad, decided on October 15, 2003, the learned Single Judge had observed that deposit of interest is a proof of the fact that the loan itself has been acknowledged in the records of the company and is therefore, admitted to by the company. Similar view has been expressed by the Delhi High Court in the case of Rishi Pal Gupta Vs. S.J. Knitting and Finishing Mills Pvt. Ltd. reported in (1998) 73 DLT 593 whereby the learned Single Judge had observed that recovery of money through a civil suit is distinct from that of the remedy provided for winding up of a company for non-payment of its debt under section 434 of the Companies Act. The fact that the respondent had shown the debt in its balance-sheet, which was transmitted to the Registrar of Companies, would amount to admission of liability of the said amount in favour of the respondent to the extent indicated therein. On such ground the learned Single Judge had held that the company petition filed by the petitioner therein was not barred by time and could be adjudicated upon by the Court. 10. In another decision rendered in the case of Arham Engineers Pvt. Ltd. Vs. On such ground the learned Single Judge had held that the company petition filed by the petitioner therein was not barred by time and could be adjudicated upon by the Court. 10. In another decision rendered in the case of Arham Engineers Pvt. Ltd. Vs. Cepham Organics Ltd. reported in (1993) 27 DRJ 257 the Delhi High Court had observed that the expression "acknowledgement of debt" must relate to a present and subsisting liability and that the date of signing the balance sheet by the respondent started a fresh period of limitation. 11. In the present case, it is not in dispute that the respondent company had deposited TDS on the interest component in the account of the petitioner company at the rate of 9% per annum calculated on the amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) although in reality, no such payment of interest had been made to the petitioner company by the respondent. The Form 26AS brought on record by the petitioner clearly goes to indicate that the respondent had deposited TDS upto the financial year 2015-16 and the said fact has remained undisputed. If the respondent has deposited TDS on the interest component upto financial year, 2016 and the loan amount has also been reflected in its audited balance sheet then it must be held that the respondent company had duly acknowledged its liability towards the petitioner and hence, this petition having been filed on 25.05.2016 cannot be held to be barred under the law of limitation. Therefore, the objection raised on the ground of limitation fails. 12. Coming to the next objection raised by Mrs. Hazarika, what must be noted herein is that by the Board Resolution of the petitioner company dated 14.10.2010 a decision was taken to merely invest some surplus fund available with the company against interest and on such basis the amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) was advanced to the respondent company for a short term of four months. Although the respondent's counsel has referred to Clause-9 of the memorandum of association to contend that the petitioner was engaged in the business of money lending, yet, from a plain reading of the said clause I am unable to agree with such submission of Mrs. Hazarika. Clause 9 of the Memorandum of Association merely permits the company to invest the surplus fund which is not immediately required by it. Hazarika. Clause 9 of the Memorandum of Association merely permits the company to invest the surplus fund which is not immediately required by it. Such investment could be in any form but the same cannot, in the opinion of this Court, be termed as an act of money lending. 13. Section 2(1) of the Act of 1934 defines "money lender" to mean persons who, in the regular course of business, advances loan but, in this case, there is nothing on record to indicate that the petitioner company is involved in lending money in the regular course of business. In view of the above, I am of the opinion that the decision of this Court in Ghooronia Tea Co. (P) Ltd. (supra) relied upon by Mrs. Hazarika would not have any bearing in the facts of the present case because that decision was rendered in a fact situation where the petitioner therein was found to have been regularly advancing money to the respondent company by charging interest at the rate of 24% per annum without obtaining registration under the Act of 1934. While interpreting the provision of Section 7-D of the Act of 1934, this Court in the case of Makhan Lal Deb Vs. Barua Bhar @ Baru Bhar, reported in (1984) 2 GLR 118, has also held that only a person who, in the "regular course of business" advances a loan, is a money lender. Since, there is no material to show that the petitioner company has been lending money in regular course of business therefore, it cannot be held that the petitioner is a money lender within the meaning of the Act of 1934. 14. It is also to be noted that the petitioner company is having its registered office at Kolkata, in the State of West Bengal. Therefore, this Court has serious doubts as to whether the provisions of the Act of 1934, enacted by the Assam State Legislative Assembly, would at all have any application on the transactions carried out by the petitioner at its registered office situated in the State of West Bengal. As such, the objection raised by the respondent's counsel on this count is also found to be unsustainable in law. 15. As noticed above, this is not a case where the respondent has denied its liability. As such, the objection raised by the respondent's counsel on this count is also found to be unsustainable in law. 15. As noticed above, this is not a case where the respondent has denied its liability. The receipt of the statutory notice issued under Section 434(1)(a) of the Companies Act, 1956 by the respondent company is also not in dispute. Although the petitioner has categorically asserted that the respondent is unable to pay its debt, nothing has been brought on record to show that it is a going concern. 16. In a decision rendered in the case of IBA Health (India) Private Limited Vs. Info-Drive Systems SDN. BHD. reported in (2010) 10 SCC 553 the Supreme Court has observed that unless there is a bona fide dispute as to the liability of the creditor, it would be permissible for the Company Court to exercise discretionary jurisdiction under Section 434 of the Companies Act and order winding up of the company. In another decision of the Supreme Court rendered in the case of Madhusudan Gordhandas and Co. Vs. Madhu Woolen Industries (P) Ltd. reported in (1971) 3 SCC 632 it has been observed that where the amount of debt is undisputed, the Court would not enter upon a defence that the company has the ability to pay the debt but has chosen not to pay it on that particular date. 17. Having regard to the facts of this case, I am of the opinion that there is no dispute as to the liability of the respondent towards the petitioner but it is a clear case where the respondent is unable to pay its debt. In view of the above, this Court is of the considered opinion that the respondent company is financially insolvent and is accordingly liable to be wounded up. This Company Petition is therefore, admitted. Let a notice be published in two daily newspapers, one English and one vernacular, having wide circulation in the States of Assam. However, having regard to the consequences that will ensue upon the company due to the order of winding up and on the request of the learned senior counsel appearing for the respondent, the publication of the notice in the newspapers be made after the expiry of 90 days from today so as to permit the respondent to make due payment to the petitioner Company. If the respondent company makes full and final payment of the amount of Rs. 50,00,000/- to the petitioner together with interest calculated thereupon at the agreed rate of 9% per annum, within 90 days from today, then in that event, the order of this Court for winding up of the respondent company need not be given effect to. Official Liquidator be informed accordingly.