Gujarat High Court
Nrc vs Hinafil on 17 January, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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COMP/76/2007 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 76 of 2007
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NRC
LIMITED - Petitioner(s)
Versus
HINAFIL
INDIA LIMITED - Respondent(s)
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Appearance :
MR
RAHUL A TRIVEDI for Petitioner(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 17/01/2011
ORAL
ORDER
1 In the present petition under Sections 433, 434 and 439 of the Companies Act, 1956, the petitioner has prayed as under:
That the Official Liquidator attached to this Hon'ble Court or some other fit and proper person, be appointed as Liquidator of Hinafial India Limited with all powers under the Companies Act, 1956 including the power to take charge of all the assets, affairs, books of accounts records,documents, papers, vouchers, bills, etc. of Hinafil India Limited, to conduct its affairs in the course of winding up to distribute its assets in accordance with law.
2 When the petition came up for admission hearing, this Court by order dated 16.4.2007 issued notice making it returnable on 8.5.2007. Thereafter, on 12.6.2007, this Court, while admitting the petition, passed the following order.
Present Company Petition has been filed under Section 433 and 434 of the Companies Act for an appropriate order of winding up of Hinafil India Limited claiming inter alia that an amount of Rs. 42,29,601 is due and payable by the respondent company to the petitioner. It is submitted that inspite of service of statutory notice neither there was any payment nor any reply to the statutory notice. This Court by order dated 16th April 2007 directed the Registry to issue notice making it returnable on 8th May 2007. Though served, nobody appears on behalf of the respondent Company.
2. Hence, ADMIT. Fixed for Final Hearing on 27th July 2007. Date of Final Hearing be advertised in two local newspapers, The Indian Express and Gujarat Samachar , both Surat Editions. Publication in Government Gazette is dispensed with.
Thereafter, on 10.8.2007, further order has been passed by the Court:
It has been stated by the learned Counsel for the petitioner that there is no Surat edition of 'Indian Express' and therefore, publication could not be made. Hence, publication be made in 'Indian Express', Vadodara edition having circulation in the Surat area.
S.O. to 13.09.2007. Report in compliance.
3 In compliance with the order dated 10.8.2007, the affidavit dated 19.9.2007 is filed and produced on record.
4 It is the case of the petitioner that the petitioner has been supplying to the respondent-company from time to time diverse quantity of Nylon 6 chips of the contracted quantity and quality and at the agreed rates and raised various invoices as mentioned in paragraph 5 of the petition. In response to the said invoices, the respondent-company failed to make payments despite several reminders and letters. It is the further case of the petitioner that the respondent-company issued three cheques which were dishonoured for lack of funds. Thus, an amount of Rs.42,29,601 is due and payable by the respondent-company to the petitioner as per the particulars of claim [Annexure M ]. On 9.9.2004, the petitioner issued statutory notice which was received by the respondent-company on 11.9.2004. It is the further case of the petitioner that, though assured by letter dated 23.9.2004, the respondent-company did not make payment, with the result, the petitioner filed complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 which is still pending. That, the respondent-company by letter to Canara Bank, Worli Branch, dated 19.1.2006 stated that they have lodged the claim with United India Insurance Company Limited and will pay the amount to the bank as soon as the insurance claim is settled and requested them to settle the petitioner claim. By their letter of the same day, the respondent assured the petitioner to settle their outstanding claim. On 14.9.2006, once again, statutory notice under Sections 433 and 434 of the Act was sent by the petitioner to the respondent. However, no payment is made by the respondent and the respondent company is unable to pay its dues.
5 Learned counsel for the petitioner submits that even currently, there is no change in the financial condition of the respondent company and there is no chance for the revival of business of the said Respondent Company. Considering the facts and circumstances, it has been strongly contended that the respondent-Company has lost its substratum and is unable to pay its dues and deserves to be wound up with immediate effect in the interest of justice.
6 Considering all the facts placed on record and considering the submissions made by the learned counsel for the petitioner, it is very clear that the Respondent Company has undeniably failed to pay its debts to the petitioner and is even today unable to pay its debts. All the ingredients of Section 433 of the Companies Act,1956 are therefore satisfied and this court has no hesitation to come to the conclusion that no meaningful purpose would be served by continuing the said respondent company. Hence, I deem it just and proper to pass an order of winding up against the respondent Company. The Official Liquidator attached to this High Court is hereby appointed as the Liquidator of the said Respondent Company. He is permitted to exercise all powers in his capacity as the Liquidator under the Companies Act, 1956 including under Sections 456 and 453, thereof. He shall immediately take possession of all the assets and movable and immovable properties of the Respondent Company, as also the records and books of accounts of the Company. In the meanwhile, the respondent-company, its Directors, Officers and servants are hereby restrained from transferring, alienating, encumbering, dealing with or creating third party interest over the assets and properties of the company.
7. The notice for final order of Winding up shall be published in two daily newspapers, viz. The Indian Express , Vadodara edition, and Gujarat Samachar , Surat Edition being the same newspapers in which the Notice of Admission was published. The same shall also be published in the Official Government Gazette.
This petition is allowed accordingly.
(ANANT S. DAVE, J.) (swamy) Top