Gujarat High Court
Sun vs Aditi on 17 January, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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COMP/89/2006 2/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 89 of 2006
======================================
SUN
METAL INDUSTRIES - Petitioner(s)
Versus
ADITI
EXPORTS PVT. LTD. - Respondent(s)
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Appearance :
MR
KK NAIR for Petitioner(s) : 1,
MS NALINI S LODHA for Respondent(s)
: 1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 17/01/2011
ORAL
ORDER
1 Petitioner has filed the present petition praying for winding up of the respondent-Aditi Exports Private Limited on the ground that the Company has lost its substratum and is unable to pay its dues.
2 Notice was issued to the respondent-company on 28.6.2006, but, despite service of the notice, nobody appeared for the respondent-company and, therefore, the petition was admitted on 19.7.2006 and an advertisement was directed to be published in Lok Satta [Gujarati daily] and Times of India [English daily] and, accordingly, published on 30.7.2006 and 1.8.2006. The petitioner filed affidavit of one Om Prakash Motiwal, proprietor of the petitioner together with the paper cuttings of the advertisement which are on record.
3. Pursuant to the advertisement, the Bank of India appeared through advocate Ms. Nalini Lodha and filed affidavit of Shri Eric Francis Tucker, Assistant Manager of the Bank, dated 17th August 2006, opposing the winding up petition contending that the Bank of Baroda is a secured creditor of the the respondent-company, that in respect of various credit facilities given by the Bank to the respondent-company, movable and immovable properties of the respondent-company are secured with the Bank, that upon the account of the company becoming NPA, the bank has invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 by issuing notice under Section 13(2) of the said Act followed by the measures under Section 13(4) of the said Act by taking over possession of the secured assets and that the Bank as secured creditor prefers to remain outside the process of winding up. Pursuant to this, affidavit in rejoinder was filed by the petitioner and further affidavit was filed by the Bank.
4 Further, an affidavit of one Sunil Subramaniam of J.M. Financial Asset Reconstruction Company Private Limited affirmed on 21.12.2010, is filed in the matter stating that the Bank of Baroda has entered into a Deed of Assignment dated 25.2.2009 with said J.M. Financial Asset Reconstruction Company Private Limited assigning all the secured debts of the respondent-company pursuant to which the assignee has sold all the secured assets of the respondent-company and that as the sale proceeds were in inadequate to satisfy the huge outstanding dues payable to the assignee, the guarantors of the respondent-company came forward with a proposal for an out of court settlement for repaying the outstanding dues to the assignee. The said proposal was accepted and the guarantors duly honoured the out of court settlement and the assignee issued 'no due certificate' dated 1.6.2010 to Aditi Exports Private Limited confirming the release of charge on the assets of the company as well as release of guarantees.
5 During the pendency of the petition, it appears that the Bank of Baroda had entered into deed of assignment on 25.5.2009 and their dues have been released and satisfied and, therefore, when the assignee has given 'no due certificate', this Court is of the opinion that the relief prayed for in the petition deserves to be granted. Acordingly, the Respondent Company is ordered to be wound up. 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. Lok Satta [Gujarati daily] and Times of India [English daily] 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.) (swamy) Top