Delhi High Court
M/S. Grandeur Collection vs Shahi Fashions Pvt. Ltd. on 3 September, 2013
Author: R.V. Easwar
Bench: R.V. Easwar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th August, 2013
% Date of Decision:3rd September, 2013
+ CO.PET. 475/2011
M/S. GRANDEUR COLLECTION ..... Petitioner
Through: Mr. Dhruv Wahi with Mr. Ashish
Sindhu, Advocates.
versus
SHAHI FASHIONS PVT. LTD. ..... Respondent
Through: Mr. C. Mukund with Mr. Ashok
Jain, Mr. Pankaj Jain, Ms. Ekta
Bhasin, Mr. Amit Kesaria and
Ms. Firdouse Qutbwani,
Advocates.
CORAM:
MR. JUSTICE R.V. EASWAR
R.V. EASWAR, J.:
This is a petition filed under section 433(e), 434 and 439 of the Companies Act by M/s Grandeur Collection seeking winding up of M/s Shahi Fashions Pvt. Ltd. in the following circumstances.
2. The petitioner is a sole proprietorship concern engaged in the business of manufacture and sale of readymade garments. It entered CO. PET. 475/2011 Page 1 of 7 into an arrangement with the respondent company under which it regularly supplied garments on outright sale basis and it was agreed that the respondent company would make payments to the petitioner against the invoices raised. In the course of the business transactions between the petitioner and the respondent, the petitioner raised various invoices upon the respondent company. In response to the e-mails sent by the petitioner, the respondent submitted a statement of account for the period from 1.4.2009 to 31.3.2010 showing an outstanding amount of `23,60,758/- due to the petitioner. It would appear that certain claims were raised by the respondent company against the petitioner by way of debit notes. Eventually, the petitioner, found that the amount due by the respondent company was not `23,60,758/- but `22,71,418/-. In the e- mail dated 27.8.2010, the respondent company admitted the liability to pay the aforesaid amount to the petitioner on account of the transactions between them. The amount was however not paid.
3. On 24.9.2011 the advocate of the petitioner issued a notice for winding up under section 433(e) read with section 434 of the Companies Act to the respondent company. The aforesaid statutory notice was sent to the registered office of the respondent company at G-44, Industrial CO. PET. 475/2011 Page 2 of 7 Area, Lawrence Road, New Delhi-110035. The alternate notice was addressed to A.K.-66-67, Shalimar Bagh, Delhi-110052. Notice was also sent by e-mail to the respondent company at the latter‟s e-mail ID which was „[email protected]‟. Whereas the notice sent to the registered office was returned unserved with the postal remark „left‟, there was no reply to the notice sent through e-mail. It is in the aforesaid circumstances that the present petition was filed in this Court.
4. The defence taken by the respondent company is that the garments supplied by the petitioner were not of the desired quality but were of inferior quality about which complaints had been lodged many times but to no effect. It is further submitted that the respondent did not receive any notice sent by the petitioner.
5. I am unable to accept the defence raised by the respondent company. As regards the non-service of the statutory notice, according to the judgment of the learned single judge of this Court (Dr. Mukundakam Sharma, J) in Hotline Teletubes & Components Ltd. Vs. A.S. Impex Ltd. 105 (2003) DLT 762, there is no requirement that the statutory notice envisaged by section 434(1)(a) of the Act should be served on the respondent company; it was only necessary to send the CO. PET. 475/2011 Page 3 of 7 notices to the registered office of the respondent. In the light of this judgment, the submission of the respondent company that it did not receive any notice at its registered office is of no consequence. The respondent did not dispute that its registered office was at G-44, Industrial Area, Lawrence Road, New Delhi-110035.
6. The other argument of the respondent company was that the petitioner was earlier communicating with the respondent company in another e-mail ID and only for the purpose of sending statutory notice, the e-mail ID namely "[email protected]" was used which was strange and unusual. I do not see the relevance of this argument or how it would advance the case of the respondent company. According to the Form-32 submitted by the respondent-company to the ROC, the e-mail ID of the company was intimated as „[email protected]‟ and it was to this e-mail ID that the statutory notice was sent by way of attachment. The receipt thereof is not denied. So long as the statutory notice was sent to the e-mail ID of the company as intimated to the ROC, nothing is to be gained by contending that all earlier communications between the petitioner and the respondent company were made through a different e-mail ID.
CO. PET. 475/2011 Page 4 of 7
7. It is further noted that initially the respondent company acknowledged a debt of `22,60,758/- in favour of the petitioner and this is also supported by a statement for the period 1.4.2009 to 31.3.2010 sent by the respondent itself. However, after adjusting the amount of debit notes issued by the respondent company, the petitioner brought down the outstanding balance to `22,71,418/-. Responding to this communication from the petitioner, the respondent company sent an e- mail on 27.8.2010 to the petitioner acknowledging the balance of `22,71,418/- and sent an updated acknowledgment through e-mail to the petitioner.
8. It is not in dispute that no reply was sent to the statutory notice sent through e-mail to the respondent company. In para 19 of the petition there is a specific averment that the respondent company is unable to make the payment and is commercially insolvent. The defences taken by the respondent company are without any substance and appear to be mere moonshine. In these circumstances, I am satisfied that the respondent company is unable to pay its debts to the petitioner and therefore should be wound up. I accordingly, admit the winding up petition.
CO. PET. 475/2011 Page 5 of 7
9. The OL attached to this Court is appointed as the Provisional Liquidator („PL‟) of the Respondent. The OL is directed to take over all the assets, books of accounts and records of the Respondent forthwith. The OL shall also prepare a complete inventory of all the assets of the Respondent before sealing the premises in which they are kept. He may also seek the assistance of a valuer to value the assets. He is permitted to take the assistance of the local police authorities, if required.
10. The Directors of the Respondent are directed to strictly comply with the requirements of Section 454 of the Companies Act, 1956 and Rule 130 of the Rules and furnish to the OL a statement of affairs in the prescribed form verified by an affidavit within a period of 21 days from today. They will also file affidavits in this Court, with advance copies to the OL, within four weeks setting out the details of all the assets, both movable and immovable, of the Respondent company and enclose therewith the balance sheets, profit and loss accounts and copies of the statements of all the bank accounts for the last three years. A report be filed by the OL before the next date of hearing.
11. A copy of this order shall be sent to the official liquidator within three days.
CO. PET. 475/2011 Page 6 of 7
List for further proceedings on 20th November, 2013.
(R.V. EASWAR) JUDGE SEPTEMBER 03, 2013 vld CO. PET. 475/2011 Page 7 of 7