IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE COMPANY PETITION NO.32 OF 2013 Between:
Raya International LLC A Texas Limited Liability Company, Registered office of the Company Situated at 211 E, 7th Street Suite 620 Austin, Texas 78701-3218 Managing Member- Sri.Ramesh K.Raja, Represented by its General Power of Attorney – Sri.Vinod Gangal.
... Petitioner (By Sri.Nagaraj Damodar, Advocate) And Rayavira (India) Marketing Private Limited, Having its registered office at No.24, 2nd Floor, 2nd Main, 3rd Cross, Chamarajpet, Bengaluru – 560 018.
Represented by its Managing Director Smt.Sandhya Arvind.
... Respondent (By Smt.Shubha S, Advocate and Sri.Jagadeesh G.S, Advocate) (Absent) This Company Petition is filed under Section 433(e), 434 and 439 of the Companies Act, 1956, praying to pass order hereby directing the Respondent Company i.e., Rayavira (India) Marketing Private Limited having its registered office at No.24, 2nd Floor, 2nd Main, 3rd Cross, Chamrajpet, Bengaluru – 560 018, Karnataka, be wound up under the provisions of the Companies Act, 1956 and etc.
This Company Petition coming on for Admission this day, the Court made the following:-
ORDER Sri.Nagaraj Damodar, learned counsel for the petitioner.
None for the respondent.
2. None had appeared on behalf of respondent on 21.12.2018 also. Today also, when the matter is called, none has appeared on behalf of the respondent.
3. Heard the learned counsel for the petitioner.
4. In this petition filed under Sections 433(e), 434 and 439 of the Companies Act, 1956, the petitioner inter-alia seeks winding up of the respondent-Company.
5. The facts leading to filing of this petition briefly stated are that the petitioner-Company is engaged in the supply (exporting and delivering) of products for Air, Space and Automobiles, namely, Aviation Industry and delivery of the said goods. It is averred in the petition that petitioner-Company as per the purchase orders placed by the respondent- Company till 2012, supplied the goods to the respondent-Company. It is the case of the petitioner that till 2012, goods worth a sum of Rs.16,86,938.96/- were supplied and delivered in the year 2011. However, despite repeated reminders, the respondent-Company failed to make payment of the amount. Thereupon the petitioner-Company issued a statutory notice on 13.09.2012. However, despite service of notice, the respondent-Company failed to make payment of its dues. It is pertinent to mention that in paragraph No.10 of the reply filed to the aforesaid notice, the respondent-Company has admitted its liability to make payment of the amount, which is due to the petitioner-Company. However, the respondent-Company has failed to make payment of the outstanding amount. Accordingly, the petition for winding up has been filed.
6. Learned counsel for the petitioner- Company has submitted that a statutory notice was served on the respondent-Company in which the amounts due and payable to the petitioner-Company was indicated. However, notwithstanding the fact that respondent-Company in paragraph No.10 of the reply admits its liability to repay the amount mentioned by the petitioner-Company, however, despite admission being made in the reply dated 01.10.2012, the respondent-Company did not repay the amount. Thus, it is evident that the respondent-Company is insolvent and is facing financial crisis and is not in a position to repay the debts due to its creditors. Therefore, the respondent-Company be directed to be wound up.
7. I have considered the submissions made by learned counsel for the petitioner and have perused the records. In paragraph No.9 of the petition, the petitioner has given the details of the supplies made by it to the respondent-Company. In paragraph No.12, it has been stated that between the parties from January 2011 to November, 2011 goods worth Rs.16,86,938.96/- were supplied to the respondent- Company. Thereupon, the petitioner-Company had issued a notice on 13.09.2012 under Section 434 of the Companies Act, 1956. In the aforesaid notice, the petitioner-Company has demanded the payment of a sum of Rs.16,86,938.96/- along with interest at the rate of 24% per annum within a period of 21 days from the date of receipt of the said notice. After service of notice, the respondent-Company filed a reply on 01.10.2012. In paragraph No.10 of the aforesaid reply, the respondent-Company has admitted its liability to make payment of the amount due and payable to the petitioner-Company. However, despite admission of its liability to make payment of the amount, till today, the amount has not been paid. From a perusal of the order sheet dated 08.04.2013, it is evident that the respondent-Company has paid a sum of Rs.5,67,000/- to the petitioner-Company in pursuance of its liability. However, thereafter neither any payment has been made nor any representation is made on behalf of the respondent-Company. Thus, the above facts and circumstances of the case lead to irresistible conclusion that the respondent-Company is not in a position to pay the amount payable to its creditors and has become insolvent.
8. Accordingly, the petition is allowed. The respondent-Company is directed to be wound up.
The Official Liquidator attached to this Court shall take charge of the office of the respondent- Company. The petitioner-Company shall deposit a sum of Rs.25 lakhs with the Official Liquidator towards provisional liquidation cost and take out advertisement of the order in newspaper, namely, ‘The Hindu’, English edition within a period of 15 days from the date of receipt of the order.
Sd/- JUDGE dn/-