M/S Citymax Hotels (India) Pvt Ltd vs M/S Windsor Gardens Private Limited on 28 August, 2008

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Karnataka High Court

M/S Citymax Hotels (India) Pvt Ltd vs M/S Windsor Gardens Private Limited on 28 August, 2008

Bench: Ram Mohan Reddy

Counsel for the Petitioner has filed the above: 

under Secﬁon 433(e)&s 434 of the Companies .~.Aet;,V. __.'_£9 56,
praying that for the reasons stated therein  _Hdt1'b:'ie-'«T 
Court may be pleased to Wind up the Respong1¢n.t Cxjinépany  
M/s. Windsor Gardens Private Limited,  its.fregi$_t'ere'du V
oﬁce at No. 81, 36th Cross, 6th Main, 5t£1«.vBJpck,'~.}a5¥§:1;eig'ar,'
Bangalore 560 041 under the proitrisicéitw 'of1thé' 

Act, 1955.  _ v 

THIS APPLICATION c0MIj¢c~2 on  5902 . .A1t5'MiSsmN,

THIS DAY THE COURT MADE mE.Fe:,Low:--N_G;A 

 

    he a company
incorpofatgd  Act, 1956, for short

the get,  .v'it3."-Riésgistered Oﬂice at the address

. V. Ashpvw-1.{1'  ca1£:§é}"fit1e while the respondent also a

fv.i;"1c<irp§0ratcd under the Act. 2". :'I'hc material particulars as regarﬂs share T%&¢z1pi+.,aj, subscribed capital, certiﬁcate of incorporation VT -r:--té., of the rcspondent--Cau1pany are set out in A' parag'aph--~3 of the petition. The petitioner states that pursuant to its objects to establish Hotels and 13K Restaurants across the country While the respon£i*ent's object being development and running of..._ﬁj Resort, colonies and other places for of.' Tourism as well as acquisition of land for sale, together ~' persons by name Shakeel the _ioir1t owners of Nos.1,2 and 3 on Sy.No.75/ situated at H11l3°'m15e§4ii " to road, Begur hobli, for short "property", entered intoen ofetéése dated September, 22, 2007, "'~.for':e-ehoft omgeemeht", whereunder 1,oo,ooo sq.ft. of ~..the tees to be constructed by the respondent, wt1ieh,V_'vti2e.i'.»'1jtetitioner was to take on lease. The petitioruer claims to have paid 15% of the security A riepoeit, payable, in terms of the agreement, out of

-»w§hieh Rs.33,60,000/- was made over to the V respondent under two cheques {while two other cheques for Rs.13,20,000/- each, were made over to debt. The determination as to whether the of the agreement is valid; amounts are. petitioner, and constitutesiaa at-. hi interpretation of the ¥1€1"1}],SWV0f. the L. my opinion, is «us under Section 443{e) of It is too far fetched for respondent is due to 'i'Iiei*e. to support the allegations thattljxe re's;oe11de:nt4'C'in'aipany has become commercial, V' isﬂincapable of paying its debt. It is not 'V the petitioner that the respondent has objects of business or the substratum of the cengtjpany is gone since there is neither allegation net In these cimumstances, it is not possibie to ._T?iold that the resmnc3.ent--Compan3: is unable to meet:

its outstanding. ? Q / X. 5 8 ,7. In mvm EXPORT ENTERPRISES vs. PRODUCIN FRIVATE LTD. reported in ILR Km-.1610, a learned Single Judge of this that the discretion exercisable under .A any other judicial assertion. of debt payabie, _4is no£_Ve:1ﬁ1cie1*:£;toé' the discretion. of the court; _pI*i:rViei3')j1e*v': down therein is that a faeie Vfnade out by respondent-Company should. 'ehouk;1efj_ojV~ ~oI11I.S of disproving it, by shoyving its'.'--defeIi6e is in good faith and one of tf1e"'i'eﬁcts of the present case, all that is an assertion of a debt payable by the..._respendent which, in my opinion, is insufﬁeient to a.ttraeta_.f}1e exercise of discretion.

8. The observations of the Apex Court in the case V' of PICUP .V:I. NORTH INDIA PETROCIIEECALS LTD.

M 9 reported in (199443 sec 348 in the apposite: Vt ' "An order under seetion , 'is diseretienary. There musttzbe attédebtee . T the Company must be u1§ab1e._ to the same. A debt underVpt.1'1:§e'~~ '"3; determined or __a th "of . :,3§(1q_r?1e3,.

payable immediately date. The inability referred at 'unable to pay :it3qVdi;1es';'_'ir:1! Vvshould be ﬁ1ike1'"1n In that, it is demands. It is . insolvent ---- i..e., to ' say, ftts"'as}sete are such, and its existing " liabiiities at-cation, as to make it reasonably V' _as to make the court feel satisﬁed - and probable assets would be hzeumcient to meet its existing liabilities". H $:Ji:'s elsewhere said that the machinery for Winding is t 'x_1::«:3,¥_: to be utilized merely as a means of xeaiising _.v_d§ebts due fmm a company. On an examirlation of the contentions of the petiticner, I ﬁnd the whole ediﬁce of M 10 its case to be built upon non existent foundation V' all arguments stem ﬁnm fallacious assu:1?g5tion.&_ In the xmuit, this petition S and is accordingly rejected.

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Karnataka High Court