Gujarat High Court
Silcotex Silicones Private Limited vs M/S Vishal Poly Yarns Private Limited on 3 October, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
COMP/134/2010 1/5 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY PETITION No. 134 of 2010
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SILCOTEX SILICONES PRIVATE LIMITED - Petitioner(s)
Versus
M/S VISHAL POLY YARNS PRIVATE LIMITED - Respondent(s)
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Appearance :
MS VAIBHAVI K PARIKH for Petitioner(s) : 1,
MR. Pahva, Sr. Adv for Respondent(s) : 1,
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CORAM : HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/10/2011
ORAL ORDER
1. Heard Ms. Parikh, learned advocate for the petitioner.
2. Petitioner has taken out present petition seeking below mentioned relief:
(a) the Company, namely M/s. Vishal Poly Yarns Private Limited, be wound up by and under the orders and directions of this Hon'ble Court under the provisions of the Companies Act, 1956;
(b) the Official Liquidator attached to the High Court, Gujarat Ahmedabad be appointed as Liquidator of the Company with all powers under the Companies Act, 1956 including power to take charge of the assets, affairs, books of accounts, documents, vouchers, bills etc. of the Company;
(c) pending the hearing and final disposal of this petition, the Official Liquidator attached to the High Court, Gujarat, Ahmedabad, or some other fit and proper person be appointed as the Provisional Liquidator of the Company and its properties, assets, incomes and also business of the Company with all powers under Companies Act, 1956, including power to take charge of the assets, records, documents, papers, vouchers, bills etc. of the Company;
COMP/134/2010 2/5 ORDER
(d) pending the hearing and final disposal of this
petition, the Company, its Directors, Managers, Servants, Agents and Officers be restrained by an order of this Hon'ble Court from in any manner directly or indirectly dealing with, disposing off, alienating, selling encumbering, parting with possession or creating third party interest, transferring any of its assets and properties in whatsoever manner or any part thereof."
3. After hearing learned counsel for the petitioner, initially order dated 08.12.2010 was passed which reads thus:
" The petitioner has prayed for an order directing winding up of M/s. Vishal Poly Yarns Private Limited on the ground that despite the statutory notice calling for the payment of the outstanding dues to the tune of Rs.2,95,597/- any payment has not been made by the said company and the statutory notice has also not been replied. In short, the submission of the learned advocate for the petitioner is that the respondent-Company has, until now, ignored the statutory notice as well as present proceedings inasmuch as despite service of process, no
-one has even entered appearance.
Having regard to the fact that the the total claim is for about Rs.2.95 lakhs, as a last chance, before passing appropriate orders directing winding up of the said company, fresh notice is directed to be issued.
The notice shall be made returnable on 27 th December, 2010.
The notice will expressly mention the fact that the company has not entered appearance in response to the process issued by order dated 26.08.2010 and that fresh notice is issued only as a last chance to the respondent. It shall also be clarified in the notice that in the event of failure on the part of the respondent either to make payment or to enter appearance before the next date of hearing, appropriate order including the order directing winding up of the company shall be passed. S.O. to 27 th December, 2010."
COMP/134/2010 3/5 ORDER
4. Subsequently, having regard to the fact that, despite the notice, no one entered appearance on behalf of the respondent-company and having regard to the fact that the respondent-company had not given response to the statutory notice as well, the Court therefore passed an order on 24.01.2011. The relevant portion of the order reads thus:
"2) It is submitted by the learned Advocate for the petitioner company that the petitioner had been carrying on business since past many years with respondent and a running account is being maintained in the Books of Accounts of the petitioner. Respondent has failed to make payment of the outstanding dues to the tune of Rs.
2,95,597/- comprised of Rs. 2,35,508/- as the principal amount and Rs. 60,089/- as interest for the materials supplied by the petitioner to the respondent company. Several Invoices were raised for the materials supplied to the respondent, which are acknowledged by the respondent company. It is also submitted that the material supplied was found to the satisfaction of the respondent company and has never raised any dispute with respect to the same. The respondent company had issued a cheque on 09/01/2010 of Rs. 27,042/- drawn on the South Indian Bank Limited, Surat towards the part payment of the outstanding dues of the petitioner company. The said cheque when deposited by the petitioner company in the Bank was dishonored on 12/01/2010 with a remark "Funds Insufficient". A notice dated 10/02/2010 under section 138 of the Negotiable Instrument Act was issued by the petitioner company for the aforesaid dishonored cheque. However, no payment is made pursuant to the said notice. Accordingly statutory notice dated 19/04/2010 was sent by the learned Advocate of the petitioner under registered post acknowledgment due to the respondent company which came to be served on 23/04/2010 as per the acknowledgment slip issued by Postal Department. It is further averred that despite receipt of statutory notice respondent company has not only not replied to the statutory notice but failed to discharge its admitted outstanding liability.
COMP/134/2010 4/5 ORDER
3) After hearing the learned Advocate for the
petitioner Notice was issued on 26/08/2010 making it returnable on 20/09/2010. The Court granted ample opportunities to the respondent company to enter the appearance, but the respondent company did not enter its appearance. On 08/12/2010 the Court recorded that as a last chance, before passing appropriate orders directing winding up, fresh notice was issued to the respondent company making it returnable on 27/12/2010. Despite such an opportunity there is no appearance on behalf of respondent.
4) In the circumstances it is apparent that the statutory presumption envisaged by provisions of Section 433 and 434 of the Act read together has arisen and the same remains unrebutted. Despite service of notice issued by this Court respondent has failed to appear. Hence in light of the statutory presumption which remains unrebutted it is apparent that respondent company has failed to either discharge its admitted liability or make satisfactory arrangement for discharging such liability as required by provisions of the Act. Hence Admit."
5. Subsequent to the said order, one Mr. Dharmendra Rathod has filed an affidavit of publication declaring that notice of admission of petition has been duly advertised in compliance of the direction vide order dated 24.01.2011.
6. Today, Ms. Parikh, learned advocate for the respondent, has submitted that even after publication of advertisement, advertising the admission of the petition, the respondent-company has not entered appearance.
7. In view of the fact that statutory notice was ignored and not replied and even in response to the Court's notice, no one has entered appearance for the respondent-company and even after publication of advertisement also the COMP/134/2010 5/5 ORDER respondent-company has not cared to enter appearance and oppose the petition or the reliefs prayed for by the petitioner, it appears necessary to protect the interest of the creditors and that therefore, it is appropriate to pass below mentioned order:
In view of the facts, as stated above, and in view of the fact that the petition has been admitted and advertisement has been published, the Official Liquidator attached to this Court is appointed as Provisional Liquidator. The Provisional Liquidator shall take the custody and charge of the property, assets and the books of accounts and all record of the respondent-company, after drawing inventory and panchnama.
8. The respondent-company and its Directors/Officers etc. are restrained from alienating or disposing or encumbering the properties and assets of the company in any manner whatsoever.
By way of further direction and also with a view to enabling the respondent to respond to the petition, the proceedings are adjourned to 25.11.2011 for appropriate orders/directions.
[K.M.THAKER, J.] JYOTI