Gujarat High Court
M/S vs Gohil on 31 January, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
Print
COMP/82/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 82 of 2010
With
COMPANY
PETITION No. 85 of 2010
======================================
M/S
TILAK POLYPACK PRIVATE LIMITED THROUGH AUTHORISED OFFICE -
Petitioner(s)
Versus
GOHIL
PACKAGING PRIVATE LIMITED - Respondent(s)
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Appearance :
MR
SAURABH M PATEL for Petitioner(s) : 1,
MR HARDIK S SONI for
Respondent(s) : 1,
MR HAROIK G PATEL for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 31/01/2011
COMMON
ORAL ORDER
1. Petitioner has filed Company Petition No.82 of 2010 under section 433 & 434 of the Companies Act, 1956 for winding up of respondent company i.e. Gohil Packaging Private Limited as respondent company is unable to pay debts due to the petitioner company in tune of Rs. 26, 53,150.40 ps ( twenty six lacs fifty three thousand one hundred fifty rupees & forty paise only).
2 Brief facts of the petitioner case are as under:
3 The respondent company has been placing orders of LD film (3 Layer) since 1999-2000 to Petitioner Company and for the said transactions, petitioner used to issue bills & invoice to respondent, wherein, the said bills & invoices along with packing list from prepared from 14.06.2007 to 18.06.2009 are produced by the petitioner at page 17 to 67 as annexure B Collectively.
4 Till the year 2006-2007 the respondent company were regularly paying the due amount, but the ledger prepared by the petitioner from the year 1999-2000 to 2009-2010 (at page 68 to 123 as annexure C Collectively) for respondent company shows that, the respondent company had started making default in paying the due bill amount of the petitioner since 14.06.2007 and since than the respondent company has defaulted in clearing the aforesaid due amount of the petitioner.
5 It is further the case of the petitioner that, even though the respondent company had started defaulting in making due payment since 14.06.2007, respondent continued placing several other orders to the petitioner and last order was placed by the respondent on 24.05.2009 and as per the said invoice details they were delivered the ordered goods on 18.06.2009. Whereas, the said bill amount was also unpaid to the petitioner along with other bills/invoice prepared & issued to respondent since 14.06.2007. Thereafter, the aforesaid ledger prepared by the petitioner from the year 1999-2000 to 2009-2010 was reconciled by the respondent company as on 01.04.2009 to 27.10.2009, wherein the said reconciled statement (at page 124 to 185 as annexure C/1 ) of the respondent shows that, they have pending dues towards the petitioner in tune of Rs. 26,53,140.96.ps ( twenty six lacs fifty three thousand one hundred forty rupees & ninety six paise only). The said pending dues of respondent towards petitioner clearly indicates that, the difference between the amount claimed by the petitioner i.e. Rs. 26, 53,150.40 ps and the amount as per the said reconciled statement of the respondent is only of 10.56 ps. Therefore, it is contended by the petitioner that, the said claimed amount is not in dispute.
6 To recover the said due amount, the petitioner had issued a letter dated 7-7-2009 (at page 186 as annexure D ), which was received by the authorized person of respondent company on 9-7-2009, wherein it has been endorsed on the said letter that the ledger and cheques will be given by Tuesday 14-7-2009 . Thereafter, the respondents had issued 29 cheques (at page 187 to 197 as annexure E Collectively) in favour of the petitioner bearing total amount of Rs.26,68,612/- in reference to the aforesaid letter and the endorsement on the said letter. The petitioner had deposited three cheques amongst the aforesaid 29 cheques issued by the respondent in the petitioner s cash credit account opened in Bank of Baroda, but the said cheques came to be dishonoured for exceeds arrangements in the respondents account on 11-8-2009 and immediately, thereafter, the petitioner had to stop depositing the other cheques issued by the respondent.
7 It is submitted by the petitioner that, as per the balance sheet & profit and loss account filed by the respondent company for the year 2007 & 2008 before registrar of companies (at page no. 211 to 215 as annexure I ), respondent company has liabilities of Rs.4,36,73,949/- (Four crore thirty six lacs seventy three thousand nine hundred forty nine rupees) as on 31-03-2008 and against the said liabilities the respondent company has assets worth of Rs.1,51,88,398/- (one crore fifty one lacs eighty eight thousand three hundred ninety eight rupees) as on 31-03-2008, which is very less against the aforesaid liabilities and also the respondent company has stopped annual filing of their balance sheet after 31-05-2008 and respondent company s profit has regularly gone down every year, whereas, after 2008 they are not in a working condition. Therefore, it is contended by the petitioner that, figures as on as on 31-03-2008, makes it abundantly clear that the respondent-company is heavily indebted to its creditors. Petitioner has further submitted that, the respondent-company has not filed its accounts with the Registrar of Companies as the petitioner has taken the search and the petitioner could not find the relevant latest annual reports from the records of the companies maintained with the Registrar of Companies. The respondent-company is, therefore, not discharging its statutory functions only with a view to conceal the particulars of its fund position. Considering the aforesaid facts in respect of the prospective liabilities, the respondent company is not in a position to pay its debts to the petitioner or either to the other creditors.
8It submitted by the petitioner that, the petitioner had issued legal notice dated 6-5-2010 through his advocate to the respondent by R.P.A.D. (at page 202 to 206 as annexure G Collectively), whereas, the aforesaid notice was delivered on 7-5-2010, thereafter as no one claimed the said notice on that day, again on 8-5-2010 the notice was delivered to the respondent, but, the said notice was returned with the endorsement in Gujarati language that 'owner not there so return' (at page no. 198 to 201 as annexure F Collectively). Thereafter, as no one has claimed the aforesaid notice issued by R.P.A.D., the petitioner had again sent the same notice through U.P.C. on 11-5-2010 and on the same day it was also dispatched through Maruti Courier Service to the respondent.
9 Petitioner further submits that, the respondent company had replied to the aforesaid legal notice dated 6-5-2010 vide their reply letter dated 16-5-2010 (at page 207 to 210 as annexure H ), whereas, the said notice was dispatched on 25-5-2010, and the same was received by the advocate of the petitioner on 29-5-2010, wherein, the respondents has merely denied the claim of the petitioner without any reasonable cause and has also not produced any documentary evidence to support their denial to the claim of the petitioner. Thus, after perusing the said reply of the respondent, it seems that the respondent is neglecting and avoiding the due amount claimed by the petitioner.
10. Notice was issued to the respondent by this court in the present petition on 25.06.2010 which was made returnable on 5th July, 2010, whereas, the respondent had appeared through his advocate on 10.08.2010. Whereas, the present petition was admitted vide oral order dated 30.08.2010 wherein, it is observed by this Court that, Mr. Hardik S. Soni, Learned advocate appears on behalf of the respondent company in the present petition, however, no reply is filed till date by the respondent company and petitioner was directed to issue public advertisement in two news papers namely Indian Express, English Daily and Divya Bhaskar Gujarati Dialy, both Ahmedabad edition. In compliance of the aforesaid order dated 30.08.2010, the petitioner company had issued public advertisement on 09.09.2010 in Indian Express, English Daily and Divya Bhaskar Gujarati Dialy, both Ahmedabad edition of the present company petitioner and in regards to the said publication, affidavit dated 19.01.2011 was filed by the petitioner.
11. So far as Company Petition No.85 of 2010 is concerned, the claim amount, as stated in the Statement of Accounts, is Rs.4,41,648/- for which the respondent-company had issued various cheques and, upon issuance of statutory notice on 3.4.2010, no reply was given and it remains undisputed that, during pendency of the Company Petition also, no reply is filed.
12. Considering the above, the following operative order is passed in both the matters, namely, Company Petition No. 82 of 2010 and Company Petition No.85 of 2010.
13. It appears from the record that the respondent-company is unable to carry out its affairs as per the provisions of the Companies Act, 1956 and the respondent-Company has lost its substratum. Hence, the Respondent Company is ordered to be wound up. 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.
14. The notice for final order of Winding up shall be published in two daily newspapers, viz. Indian Express, English Daily and Divya Bhaskar Gujarati Daily, both Ahmedabad edition, being the same newspapers in which the Notice of Admission was published. The same shall also be published in the Official Government Gazette.
Both the petitions are allowed accordingly.
(ANANT S. DAVE, J.) (swamy) Top