Gujarat High Court
Unify vs Pooja on 19 April, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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COMP/108/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 108 of 2010
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UNIFY
AGRO (INDIA) PVT LTD - Petitioner(s)
Versus
POOJA
IRON & STEEL PVT LTD - Respondent(s)
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Appearance :
MR
DHARMESH V SHAH for Petitioner(s) : 1,
MR SUDHIR M MEHTA for
Respondent(s) : 1,
MS SHAILEE S MEHTA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 19/04/2011
ORAL
ORDER
Heard learned counsels for the parties.
This petition is filed by the petitioner under the provisions of Sections 433 and 434 of Companies Act, 1956 with a prayer to order winding up of respondent Company namely Pooja Iron & Steel Pvt Ltd. It is the case of the petitioner that Respondent Company placed orders on the petitioner for supply of Gray Fabric from 20.11.2009 to 9.12.2009 worth Rs. 31,35,153/- by 7 bills, on agreed rates as per the agreed terms and conditions. Accordingly, under the instructions and on behalf of the respondent company, the petitioner had supplied the goods comprising of Grey Fabrics to the respondent company, for an aggregate value of Rs. 31,35,153.00 which the respondent company have accepted without any dispute. In respect of the said supply of the material, the petitioner had raised Invoices as per the agreed terms and conditions. The petitioner submits that the Respondent Company accepted the said Invoices of Rs. 31,35,153.00. The Petitioner further submits that out of the total supply of materials of Rs. 31,35,153.00, The respondent company has paid Rs.24,88,700.00. It is further submitted that Rs.6,46,453.00 is not paid and still outstanding as on date. The Petitioner submits that on the basis of the appropriation / adjustment of the amounts, the total amount due and payable by the Company as on 21/04/2010 is Rs. 6,67,918/- [Principal Amount of Rs. 6,46,453/- and including interest at the rate of 12% p.a. of Rs. 21465/- from 10/1/2010 to 21/4/2010 and further interest from 22/4/2010 to till payment and statutory notice under Section 434(1) (a) dated 21.5.2010 was sent on 28/5/2010 at the registered office of the respondent Company by registered post calling upon the Company to pay up the dues but no reply was received. The Company has neglected to pay any amount as demanded by the above notice. It is therefore, submitted that when the respondent Company has failed and neglected to pay and clear the dues of the petitioner within the statutory period of 21 days, the Company is deemed to be unable to pay the debts in normal and ordinary course of business and the Company has become insolvent, therefore, it is prayed that pending final disposal of the petition, the Official Liquidator appointed to this Court be appointed as provisional Liquidator under the Companies Act, 1956 and during pendency of the petition, the respondent, its servants and agents be restrained from disposing, alienating, encumbering, transferring and creating third party rights over the assets and properties of the Company.
Learned counsel for the respondent submits that the fact stated by the petitioner are not in dispute and the respondent Company is unable to pay the dues.
Considering the overall facts and circumstances of the case, from the record it transpires that the respondent Company has failed to pay the legal dues of the petitioner company and in spite of service of statutory notice under Section 434. The respondent Company, however, gave no reply within or even after the completion of statutory period of three weeks. The petitioner has, therefore, filed this Company Petition seeking winding up of the respondent Company and the details of the petitioner Company are admitted.
In response to the notice issued by the Court, the respondent Company is represented by learned advocate. On behalf of the company, a reply has also been filed in which it is averred as under :
"5.
It is submitted that no activity on the part of the company is going on; at present it is difficult to arrange funds to make payment to the outstanding bills. It is further submitted that the company is trying to arrange the funds. It is further submitted that it will take some time to arrange funds and the petitioner is requested to wait for some time.
From the above, it is undisputed that the respondent Company owes sizable amount to the petitioner Company which is due and payable. Despite demand and statutory notice, there has been no response from the respondent Company. In the affidavit filed before this Court also, it is clearly stated that the Company is unable to pay the debt".
The petitioner has complied with directions issued by this Court vide order dated 14.12.2010 and while admitting the petition and has also published the notice in a two daily newspapers and accordingly the affidavit dated 9th February, 2011 is filed. Thereafter also there is no willingness on the part of the respondent Company to pay the dues.
Considering all the facts placed on record and considering the submissions made by the learned counsel for the petitioner, it is very clear that the Respondent Company has undeniably failed to pay its debts to the petitioner and is even today unable to pay its debts. All the ingredients of Section 433 of the Companies Act,1956 are therefore satisfied and this court has no hesitation to come to the conclusion that no meaningful purpose would be served by continuing the said respondent company. Hence, I deem it just and proper to pass an order of winding up against the respondent Company. 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.
The notice for final order of Winding up shall be published in two daily newspapers, viz. "The Indian Express" and "Loksatta-Jansatta", 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.
This petition is allowed accordingly.
(ANANT S. DAVE, J.) *pvv Top