IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF NOVEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE A.S.BOPANNA COP NO.269/2014 BETWEEN:
YCH LOGISTICS INDIA PVT. LTD.
A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING REGISTERED OFFICE AT NO.65/2, RAILWAY PARALLEL ROAD, KUMARA PARK WEST BANGALORE-560 020 REPRESENTED BY ITS DIRECTOR MR.HARIKUMAR S.
… PETITIONER (BY SRI.YASHODHAR HEGDE, ADV. FOR M/S.PRAGATI LAW CHAMBERS) AND:
ARUN SELVAN LOGISTICS PVT. LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND HAVING REGISTERED OFFICE AT NO.10 RBI COLONY, 1ST CROSS, 1ST MAIN JAYANAGAR III BLOCK EAST BANGALORE-560 027 REPRESENTED BY ITS MANAGING DIRECTOR MR.PADMANABHAN ARUN … RESPONDENT (BY VENKATESH C SHARMA, ADV. FOR M/S. SRI VAISHNAVI LAW ASSOCIATES) THIS COMPANY PETITION IS FILED UNDER SECTIONS 433 (e) & (f) READ WITH SECTIONS 434 AND 439 OF THE COMPANIES ACT, 1956 PRAYING TO ORDER THAT THE RESPONDENT-COMPANY BE WOUND UP UNDER SECTION 433(e) AND (f) OF THE COMPANIES ACT, 1956.
THIS COMPANY PETITION IS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner is before this court in this petition filed under Section 433(e) and (f) of the Companies Act, 1956 seeking that the Respondent-Company be wound up as they are unable to pay the debts due to the petitioner.
2. The petition was initially admitted through the order dated 02-09-2016 and paper publication was taken out. In the order of admission, it is observed that the respondent had not filed any statement of objections prior to consideration of the petition for admission. Subsequent to the order of admission, the respondent nodoubt has filed objections statement. Though the admission order was published, no other person or persons representing the respondent-company have approached this court opposing this petition for winding up the respondent company. In that light, keeping in view the fact that this Court at the first instance had found it appropriate to admit the petition, at that stage, it is noticed that except the respondent-company having filed the statement of objections, there is no other change in the circumstances in as much as the respondent has not made an attempt to trace the materials lost or repay the amount due to the petitioner.
3. In that regard, a perusal of the petition papers and the averments made in the objections statement would disclose that the transaction as entered into between the petitioner and respondent is not in dispute. Further taking note of the objections of the respondent that in view of entrusted materials being lost and in that regard, there is disputed question which requires consideration in the appropriate forum and also the contention that the petitioner was required to insure the goods entrusted to the respondent, it is necessary to take note of the documents relating to the transactions entered into between the parties.
4. The letter dated 30-5-2011 (Annexure-C) is letter of appointment, wherein the respondent was appointed as an agent for Logistics and transportation with the terms and conditions as has been agreed therein. The same does not disclose that the petitioner was required to insure the goods entrusted. On the other hand, the same indicates that on entrustment of goods to the respondent, they would be responsible for the safety of the goods. Be that as it may, at that stage, when the goods were lost and the communications were exchanged between the parties, the respondent through their E-mail dated 6-1-2012 have infact intimated the petitioner that one of their blacklisted vendors with the connivance of certain of their staff members who were dismissed earlier on disciplinary grounds had moved the shipments and have created fraud by creating fictitious documents proving delivery. If that be the position, the respondent having accepted the loss of goods entrusted to them was at their end and on account of certain disputes with their vendors and staff, certainly the petitioner cannot be held responsible at this point in time.
5. That apart, what is to be taken note is that, a debit note for the loss of consignment was raised which was also accepted by the respondent as part of the documents at Annexure-E. Further, when the petitioner had issued a statutory notice dated 02-04-2012 calling upon the respondent to pay the amount of Rs.17,90,299.48/- which was due as on that date, the respondent had not chosen to either pay the amount or reply to the said statutory notice, though they had received the same as evident from the postal acknowledgment which is produced along with the petition. Therefore if these aspects of the matter are kept in view and the defense as put forth in the objection statement is taken note, the same cannot be considered as bonafide defense, but it is only a moonshine defense in an attempt to defeat the present petition. Such defense in any event cannot be accepted in the circumstance where this Court has admitted this petition and the same has been advertised and thereafter no effort has been made by the respondent to pay the amount. Hence, the only conclusion that could be reached herein is that the respondent is unable to pay the debts due to the petitioner and they are liable to be wound up.
6. Accordingly, the petition is allowed. It is ordered that the respondent-company be wound up in accordance with law. The Official Liquidator attached to this Court shall now take charge of the affairs of the respondent- company and proceed further in accordance with law.
The petitioner shall deposit a sum of Rs.20,000/- towards provisional liquidation costs with the Official Liquidator and take out publication of the order of winding up in Hindu English Daily, within a period of 15 days from the date of receipt of a copy of this order.
Sd/- JUDGE mpk/-*