Precision Engineering & Fabricators ... vs Unknown on 23 March, 2017

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Calcutta High Court

Precision Engineering & Fabricators ... vs Unknown on 23 March, 2017

Bench: I. P. Mukerji

                            CP No.487 of 2016
                    IN THE HIGH COURT AT CALCUTTA
                           Original Jurisdiction
                             ORIGINAL SIDE


                            In the matter of:
            PRECISION ENGINEERING & FABRICATORS PVT. LTD.
                                  And
                            In the matter of:
                           DADHIBAL SHAW


  BEFORE:

  The Hon'ble JUSTICE I. P. MUKERJI

  Date : 23rd March, 2017.

                                         Appearance:

                                         Mr. R.R.Sen, Advocate
                                         Mr. P.K.Bagaria, Advocate
                                         Mr. Siddhartha Basu, Advocate
                                         for the petitioner


     The Court: Prima facie this is a cast iron case where not only the

winding up application should be admitted but subsequent steps should

be taken so that the respondent company is wound up. It is quite clear

that it is unable to pay its debts, as will appear from what is stated below.

The claim of the petitioner is founded on goods sold and delivered by him to the respondent company between July 20, 2013 and August 2013.

As on 19th June 2015 a sum of Rs.46,24,610/- was due and payable on account of principal. The petitioner also claims interest @ 24% p.a. after sixty days of delivery of the bills upto 19th June 2015.

The petitioner caused to be issued a statutory notice dated 30th June 2015 which was not replied to by the respondent company. Immediately a presumption of insolvency arose under Section 434(1)(a) of the Companies Act 1956.

After receipt of the statutory notice the respondent company made a part payment of Rs.5.5 lakhs as a result of which the principal sum due and owing by them to the petitioner is reduced to Rs.40,74,610/-.

Despite directions and subsequent extension of time, the company has not filed any affidavit in opposition. In those circumstances, upon mentioning by the petitioner this application was directed to be listed as "Company Matter Adjourned (Unopposed)". None appears for the company.

Prima facie, the petitioner is entitled to the principal sum of Rs.40,74,610/-.

Prima facie the claim for interest appears to be excessive. The petitioner will be entitled to interest under the Sale of Goods Act 1930 @ 9% p.a. simple interest after expiry of sixty days from the date of the respect invoices till this date and further interest at the said rate from the date of this order till payment.

The petitioner will have to establish his balance claim for interest at the time of final hearing of the winding up application or in any other form.

Hence, prima facie, the company is unable to pay its debts. This application is formally admitted. Let the application be advertised in the Statesman and Bartaman by 28th April 2017. List this application as "Company Matter (New)" on 7th June 2017.

Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(I.P.MUKERJI, J.) G/

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Calcutta High Court