High court of bombay
Gujarat Sidhee Cement Ltd.
v.
Rainbow Corporation Ltd.
Anoop v. mohta, j
Company petition no.343 of 2001
With company application no.19 of 2005
August 31, 2007
Section 433, read with sections 434 and 439 of the Companies Act, 1956 - Winding up -
Circumstances in which a company may be wound up - Whether where admittedly
amount due and payable by respondent company its petitioner was more than Rs. 3
crores and despite several efforts made by petitioner and opportunities allowed
from time to time company could not pay principal amount and interest thereon, it
could be concluded that petitioners had complied with all necessary formalities
as required under law, and, thus, petition for winding up of respondent company
was to be allowed - Held, yes
FACTS
On 22-9-1998,
an agreement was arrived at between the parties whereby the respondent company
acknowledged and admitted its liability and agreed to pay to the petitioner a
sum of Rs.5,68,92,000. A Memorandum of Understanding (MoU) dated 22-9-1998 was
arrived at and executed by and between the parties. Dates of payment were settled
between the parties. The company, accordingly’ forwarded cheques to the
petitioner. However, the cheques so issued were dishonoured due to insufficient
funds. As a result, the petitioner called upon the company to make payment of
its dues and held several meetings. A Supplemental Agreement dated 6-5-1999,
had been earned into between the petitioner and the company. Under said agreement,
admitted liability to pay Rs.5,68,92,000 to the petitioner had been agreed to
be paid on a time bound schedule alongwith interest thereof. The earlier
dishonored cheques were returned and fresh cheques were handed over to the
petitioner. The company had also furnished an affidavit agreeing to create a
charge on the company’s assets as also to create a mortgage of its immovable
assets in favour of the petitioner on the basis that the company was liable to,
and indebted to the petitioner of its dues. The cheques were again dishonored
with a remark ‘insufficient funds’ and necessary steps under Negotiable
Instruments Act, 1881 and Indian Penal Code were taken. On 22-8-2000, the
petitioner issued a statutory notice to the company as well as to the Chairman
of the company, calling upon them to make payment of the dues. The company however
failed and neglected to reply the statutory notice. In such circumstances, the petitioner
invoked the provisions of sections 433, 434 and 439 to wind up the company.
HELD
The company by
letter dated 24-8-2000 inspite of admission had raised various defences which
were unsustainable. Even after adjustment, there remained no doubt in view of
the clear admission made that the amount was due and payable more than Rs.3
cores. Admittedly there was no proceeding raised or initiated by the company at
any earlier point of time except by raising such pleas of adjustment and/or of
outstanding first time after a demand made by the petitioner of the dues in
question. Admittedly, there was no reply to the last statutory notice dated
22-8-2000. [
The claim
therefore, on the date of filing of the petition is as on 30-11-2000 remained
to be Rs. 5,09,15,672 which was inclusive of principal sum due and outstanding
as on 30-11-2008 i.e., Rs. 3,23,92,000/-.
[
Taking all
this into account including the so-called defenses raised this Court on
11-6-2004 after hearing both the parties had admitted the partition. Te petitioner had complied with all the
necessary formalities as required under the law. [
None appeared
for the company though the matter had been in the list of hearing and was
adjourned form time to time. [
In view of
uncontroverted position and the clear admissions on the part of the company, in
so far as the liability in question was concerned, there was no doubt that the
petitioner had made out a case as contemplated under the provisions mentioned. [
Resultantly,
instant petition was to be allowed. [