Gujarat High Court
Ganesh Madhavlal Patel vs Trisuns Chemical Industry on 13 March, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
GANESH MADHAVLAL PATEL....Petitioner(s)V/STRISUNS CHEMICAL INDUSTRY LTD....Respondent(s) O/COMP/169/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION NO. 169 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE R.M.CHHAYA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ GANESH MADHAVLAL PATEL....Petitioner(s) Versus TRISUNS CHEMICAL INDUSTRY LTD....Respondent(s) ================================================================ Appearance: MRS SANGEETA N PAHWA, ADVOCATE for the Petitioner(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 13/03/2013 ORAL JUDGMENT
1. The present petition has been preferred by the petitioner under Sections 433 and 434 of the Companies Act, 1956 (hereinafter referred to as the Act ) for appropriate order of winding-up of the respondent-Company Trisuns Chemical Industry Ltd. , having its registered office at Plot No.25 and 38, Sector No.2, Kandla Special Economic Zone, Gandhidham (Kutch) and having its office at 601, Anurag Apartment, Usmanpura, Ahmedabad.
It is the case of the petitioner that the petitioner is engaged in the business of Castor Seeds, which include the activity of processing, packaging and storing Castor Seeds and Castor Oil in the form of raw material, unfinished goods, semi-finished goods, finished goods, whether packed or otherwise.
3. It is the case of the petitioner that the petitioner entered into the business transaction with the respondent-Company and initially the respondent-Company settled the amounts, which were covered by the invoices raised by the petitioner from time to time. It is further the case of the petitioner that the respondent-Company, however, neglected to pay an amount of Rs.4,97,975/- and the said amount is due and outstanding as on 01.04.2011.
4. The petitioner has further relied upon the entries, which were made in the Books of Accounts as well as communication dated 24.01.2012, whereby the respondent-Company has acknowledged that the amount is due and payable and in fact, the respondent-Company wanted sometime to settle the issue.
5. It is the case of the petitioner that the petitioner addressed letters dated 25.04.2011 as well as dated 08.11.2011 to the respondent-Company, however, except the respondent-Company referred to above communication dated 24.01.2012, no response was given and therefore, the petitioner again vide communication dated 16.04.2012 asked the respondent-Company to settle the dues at the earliest.
6. It is further the case of the petitioner that as even such efforts failed, the petitioner again sent a letter dated 24.05.2012. It further transpires from the record that, since no response was given by the respondent-Company, the petitioner addressed a legal Notice under the Companies Act, 1956 to the respondent-Company on 06.06.2012. It is further the case of the petitioner that in fact, the legal Notice was issued, has been acknowledged by the respondent-Company and vide communication dated 05.07.2012, the respondent-Company has informed the petitioner that the respondent-Company is unable to arrange the funds and sought time for giving payment. In spite of such assurance given by the respondent-Company, it did not make any payment and therefore, the present petition has been filed by the petitioner under Sections 433 and 434 of the Companies Act, 1956 for prayers as prayed for.
7. Mr.Navin Pahwa, learned counsel for the petitioner has submitted that the respondent-Company has not only acknowledged the debt but has also given assurance to the petitioner to make payment but has neglected and failed to fulfill such assurance, as given to the petitioner. He further submitted that the respondent-Company become commercially insolvent and has lost its financial substratum. It is evident from the conduct of the respondent-Company. That the respondent-Company is unable to pay its dues to the creditors and therefore, the respondent-Company is liable to be wound-up under Sections 433 and 434 of the Companies Act, 1956.
8. It may be noted that this Court (Coram:Hon ble Smt.Justice Abhilasha Kumari) vide order dated 05.10.2012 has passed the following order:
1. The present petition has been preferred by the petitioner Company under Sections 433 and 434 of the Companies Act, 1956 ( the Act for short) for an appropriate order of winding up of the respondent Company, that is, Trisuns Chemical Industry Ltd.
2.
It is the case of the petitioner that a sum of Rs.4,97,975/- is due and payable to the petitioner by the respondent Company towards value of goods supplied by the petitioner to the respondent Company. It is further the case of the petitioner that the respondent Company is not in a position to pay its debts to its Creditors and has lost its substratum.3.
3. Heard Ms.Sangeeta N.Pahwa, learned advocate for the petitioner. It is submitted that despite service of statutory notice the amount has not been paid. Though served, respondent is not appearing before this court.
4. This Court, vide order dated 31-7-2012, issued notice to the respondent. The notice has been duly served upon the respondent. However,in spite of service of notice, none appeared on behalf of the respondent Company on 13-9-2012, as recorded in the order of even date. The same is the situation today. Hence, Admit.
5. The petition is fixed for final hearing on 9-11-2012. Admission of the petition and the date of final hearing shall be published in two local newspapers,that is, Indian Express (English daily newspaper) and Lok Satta Jan Satta (Gujarati daily newspaper), both having circulation in Ahmedabad. Publication in the Government Gazette is dispensed with.
6. It is ordered that the publication of advertisement be deferred for two weeks from today. If, by that time, no reply is received or representation is made by the respondent, the order, as above, shall be made effective. The petition be listed on 9-11-2012.
9. The petitioner has thereafter, filed an affidavit of Service as well as affidavit of publication of Notice as per order dated 05.10.2012. In spite of fact that the respondent-Company is served, no one has appeared till date. It may further be noted that earlier the matter was listed for its final hearing before this Court on 18.01.2013 and on 18.02.2013 and in spite of repeated opportunities being given to the respondent-Company, no one appears on behalf of the respondent Company before this Court.
10. On perusal of the documents, which are part of this petition, it is clear that by communication dated 24.01.2012, the respondent-Company had assured the petitioner that the fund shall be arranged and has thus admitted the outstanding amount and acknowledged the same.
11. It may further be noted that on receipt of the Statutory Notice issued by the petitioner, the respondent-Company has clearly stated in its reply dated 05.07.2012 (at Annexure-F to the petition) that the respondent-Company is unable to arrange the funds and requested the petitioner to bear with the respondent-Company for sometime and that they shall try to make a payment to the petitioner within one week. It further appears that even after such assurance given in the reply dated 05.07.2012, no payment has been made though acknowledged, hence, the present petition came to be filed. It is also an admitted position that the Notice of admission has been served upon the respondent-Company and even the public Notice has also been published in the newspaper. No one appears on behalf of the respondent-Company before this Court.
12. Considering the facts of the case, the debt is already acknowledged by the respondent-Company and in view of the fact that in reply to the Statutory Notice of respondent-Company, has clearly stated that the respondent-Company is unable to pay its debt. In opinion of this court, the respondent-Company has become commercially insolvent and has lost its financial substratum.
13. Considering the aforesaid facts and circumstances, it would be just and proper to direct that the respondent-Company Trisuns Chemical Industry Ltd. be wound-up. Accordingly, the respondent-Company Trisuns Chemical Industry Ltd. is hereby ordered to be wound-up. The Official Liquidator attached to this Court is hereby appointed as Official Liquidator of the respondent-Company and the Official Liquidator is directed to take over the possession of the entire assets of the respondent-Company i.e movables, immovables as well as Bank account etc. The Official Liquidator is further directed to do the needful for winding-up of the respondent Company as provided under the Act. The petition is allowed, accordingly.
(R.M.CHHAYA, J.) Suchit Page 6 of 6