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2008 DIGILAW 385 (GUJ)

JAYMAN R SHAH v. CHIME ELECTRONICS LIMITED.

2008-09-01

C.K.BUCH

body2008
JUDGMENT 1. The petitioner Shri Jayman R. Shah, Proprietor of S.J. Shah & Company has filed this petition under Section 433 read with Section 434 of the Companies Act, 1956 praying that the respondent Chime Electronics Limited be ordered to be wound up under the provisions of the Companies Act and this Court may appoint Official Liquidator attached to this Court as Official Liquidator of Chime Electronics Limited. It is also prayed that the Official Liquidator attached to this Court also be appointed as Provisional Liquidator of the said Company and he may be directed to take over possession of assets and affairs of the company pending this petition. But when the Court has decided to hear the petition finally, there is no need to pass any such interim order. 2. When this petition was listed for admission hearing in the month of June, 2007, the Court decided to issue notice vide order dated 19th June, 2007 making it returnable on 23rd July, 2007. Even after service, nobody cared to appear and resist the admission of the petition. Therefore, the Court, vide order dated 13th December, 2007 admitted the petition. It would be beneficial to reproduce relevant part of the order of admission, because, it indirectly supports the contention of the petitioner that the respondent company is willful defaulter of the debts as per the scheme of the Companies Act. Considering the averments made in the petition as well as after having heard Mr. Jashani, learned advocate appearing for the petitioner, the Court is of the view that the petition deserves to be admitted. It is accordingly ADMITTED. The order of admission is naturally followed by order of advertisement. However, order of admission is passed in absence of the learned advocate appearing for the respondent Company and advertisement order will have serious repercussion on the respondent Company. Before such order is passed one more opportunity is given to the respondent Company and it is made clear that on the next date if nobody appears on behalf of the respondent Company, the order of advertisement will be passed in the matter. 3. The day on which the petition came to be admitted, the Court did not pass orders for publication of advertisement. This was nothing but an indirect opportunity to the respondent so that the respondent company can appear and make necessary submission and avoid future complications. 3. The day on which the petition came to be admitted, the Court did not pass orders for publication of advertisement. This was nothing but an indirect opportunity to the respondent so that the respondent company can appear and make necessary submission and avoid future complications. The respondent could have appeared and satisfied the Court that the winding up petition may perhaps fail and therefore, no public advertisement be issued about admission of the winding up petition. But for want of appearance and representation on the part of the respondent Company, the Court ordered publication of advertisement in two newspapers; one in Indian Express [English language] and another in Sandesh [Gujarati], both of Ahmedabad Edition, fixing the date of final hearing on 31st January, 2008. 4. The petitioner could not have the advertisement published in the time frame given for the purpose. Therefore, fresh order for publication was obtained by the petitioner and the Court, vide order dated 11th March, 2008 permitted the petitioner to see that the advertisement is published as per the earlier directions given and the petition was fixed for final hearing on 9th April, 2008. 5. Till this date, nobody has appeared nor resisted the petition. The allegation made against the respondent company in the petition is that the respondent company had engaged the petitioner as professional, more particularly as Consultant, but the respondent company failed in paying the bill dated 7th January, 2004. The bill was for an amount of Rs. 1,20,000/-. Copy of the bill is annexed as Annexure:A to the petition. Thereafter, there was correspondence between the petitioner and the respondent Company. Ultimately, as the amount was not paid by the respondent Company, the petitioner decided to serve a notice statutorily required under the scheme of the Companies Act before filing the present petition. Statutory notice dated 17th October, 2005, undisputedly has been dispatched by registered post A.D., and the petitioner has satisfied the Court by producing relevant documents vide Annexures: C and D. 6. It is not possible to infer that the petition has been preferred with any ulterior motive or any malafide. An attempt is also not to pressurize the respondent company for recovery of the amount. This is a case of willful default. Such Company cannot be permitted to exist as a Company and therefore, the Company should be ordered to be wound up. 7. An attempt is also not to pressurize the respondent company for recovery of the amount. This is a case of willful default. Such Company cannot be permitted to exist as a Company and therefore, the Company should be ordered to be wound up. 7. For the reasons aforesaid, the present petition is allowed. The respondent company Chime Electronics, GIDC, Electronic Zone, Gandhinagar is hereby ordered to be wound up. The Official Liquidator attached to this Court is appointed as Official Liquidator of the Company and is directed to take over possession of assets and affairs of the company forthwith. Office and business of the Company are situated at GIDC, Electronic Zone, Gandhinagar. The Official Liquidator shall see that possession of the properties of the company is taken over at the earliest to avoid theft or misappropriation of the properties of the company. The petition stands disposed of as allowed.