In the present petition under Sections 433 and 434 of the Companies Act, 1956, the petitioner has prayed that the company M/s Hilton Organic Chemicals Pvt. Ltd., be ordered to be wound up under the provisions of the Companies Act, 1956 and under the Order, direction, supervision and control of this Hon'ble Court.
2 It is the case of the petitioner that the Petitioner had supplied 142.5 MT 'Cast Iron Powder' which was accepted and utilized by the Respondent Company. Therefore the Respondent Company was required to pay to the Petitioner an amount of Rs.28,62,278/- against the supplied material of 142.5 MT including outstanding dues of previous supply to the Respondent Company. As per the terms and conditions more particularly mentioned in the various invoices by the Petitioner the Respondent Company is also liable to pay to the Petitioner interest @ 18% on the outstanding amount from the respective due dates mentioned in the various invoices.
In view of the above, the Petitioner through their advocate issued a Notice under section 434 of the Companies Act, 1956 calling upon the Company to make the payment of Rs.28,62,278/- together with the interest @ 18% from the due date of the respective invoices till realization of outstanding amount within a period of 21 days from the date of receipt of the Notice, failing which the Petitioner will file a Winding up Petition under section 434 of the Companies Act. The Respondent Company has not given any reply to the Notice of the Advocate of the Petitioner.
It is the case of the petitioner that the Respondent Company has also failed to discharge the financial liability. There is, therefore, a sum of Rs.28,62,278/- being the amount due to the Petitioner by the said Company for the price of goods sold and delivered, as per the particulars of the claim annexed to the petition. The Petitioner filed Company Petition No.110 of 2010 before this Hon'ble Court for winding up of the Respondent Company. This Court issued Notice to the Respondent Company making it returnable on 16.08.2010. Though served no one appears for the Respondent Company. When the petition came up for hearing, this Court by order dated 28.09.2010 passed the following order:
"1. The petitioner has filed this petition under sections 433 and 434 of the Companies Act, 1956 for winding up of the respondent company, on the ground that the respondent company has failed to discharge its liabilities despite the fact that the statutory notice was already served on the respondent company.
2. This Court has issued notice on 21.07.2010 making it returnable on 16.08.2010. The notice was duly served on the respondent company. An affidavit to that effect is filed before the Court. Despite service of notice, nobody appears on behalf of the respondent company. It therefore gives presumption that the facts stated and averments made in the petition are not disputed by the respondent company.
3. In view of the above facts, and after hearing the learned counsel Mr. D.G. Shukla, appearing for the petitioner, the Court hereby admits this petition. Since order of advertisement is already passed in Company Petition No.109/2010, no separate order for advertisement is required. To be heard with Company Petition No.109/2010".
Though served, no one appeared for the respondent Company. The Respondent Company in the meantime, has paid by five installments each of Rs.3,06,250/- to the Petitioner totally amounting to Rs.15,31,250/-. The Respondent Company has neither appeared before this Court nor paid the balance amount of Rs.13,31,028/- to the Petitioner till today.
7 Learned counsel for the petitioner submits that even currently, there is no change in the financial condition of the respondent company and there is no chance for the revival of business of the said Respondent Company. Considering the facts and circumstances, it has been strongly contended that the respondent-Company has lost its substratum and is unable to pay its dues and deserves to be wound up with immediate effect in the interest of justice.
8 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.
10. Since the final order of winding up is already passed in Company Petition No.109 of 2010, no separate order for advertisement is required to be passed in this petition.
This petition is allowed accordingly.
(ANANT S. DAVE, J.) *pvv Top