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2016 DIGILAW 366 (DEL)

Saboo Coatings Ltd. v. In Trading Pvt. Ltd.

2016-01-22

RAJIV SHAKDHER

body2016
ORDER : 1. The learned counsel for the respondent draws my attention to the order dated 10.07.2015, whereby, my predecessor had made the following observations after a detailed hearing. For the sake of brevity, the observations made in the proceeding held on 10.07.2015, are extracted hereinbelow :- “CA No. 176/2015 (for delay) This is an application moved by on behalf of the petitioner seeking condonation of delay of 45 days in filing rejoinder to the reply filed by the respondent. For the reasons stated in the application, the delay is condoned and the rejoinder is taken on record. The application stands disposed off. CO. PET. 365/2013 This petition seeking winding up of the respondent-company, namely, In Trading Private Limited, is predicated on a communication sent to the respondent on 5th March, 2013, demanding outstanding dues which were stated by the petitioner to be, "to the tune of Rs.45 lacs". In response, the respondent replied the very next day i.e. on 6th March, 2013, in substance offering a settlement by paying 50% of the amount due to the petitioner. Significantly, there is no specific dispute raised with regard to the amount claimed; and in any case, no attempt is made even to suggest that the amount due from the respondent to the petitioner was different from the amount sought in the petitioner's communication of 5th March, 2013. In fact, the respondent has not even ventured to specify any amount different from the amount claimed by the petitioner which, according to the respondent, is due and payable to the petitioner. The respondent has also not taken the position that nothing at all is due to the petitioner. Even, the notice of winding up dated 1st April, 2013, where a specific amount of Rs.43 ,48,874/- as having become due and payable by the respondent to the petitioner as on 18th March, 2013 has been set down, has elicited no response whatsoever. In the reply filed to the notice to show cause, the respondent has failed to specify any amount till date which according to it was due and payable, nor has it taken any specific stand stating that nothing whatsoever is due. The respondent appears to be under the impression that it can keep on avoiding its liability to pay merely on the ground that in two or three different communications there are some differences in the amount demanded by the petitioner. The respondent appears to be under the impression that it can keep on avoiding its liability to pay merely on the ground that in two or three different communications there are some differences in the amount demanded by the petitioner. Another ground being put forward for resisting this instant petition is that the petitioner has also been advised to file a civil suit seeking recovery of Rs.42,41,427/- and the mere fact that such a suit is pending decision is sufficient to defeat the instant petition. Ex-facie, the stand of the respondent appears to be without substance. At this stage, counsel for the respondent states that his client would like to explore the possibility of settlement through Mediation. Counsel for the petitioner states that he is not averse to making such an attempt. Consequently, and as prayed, let both the parties appear before the Delhi High Court Mediation and Conciliation Centre on 17th July, 2015 at 3:00 p.m. Report of the Mediator be sent to the Court for further consideration. In case, no settlement is forthcoming between the parties at least four weeks before the next date of hearing, the Managing Director or in his absence all the Directors of the respondent-company shall file their personal affidavits before the next date of hearing enclosing therewith the following:- (i) All information and particulars with regard to their shareholding in the company, their involvement in the affairs of the company and the nature of steps taken by them with regard to the management of the company; (ii) The Profit & Loss Account and the Balance Sheets of the Respondent Company for the last three years; (iii) The list of the bank accounts of the Respondent Company; (iv) The names and residential addresses of the Directors and company secretary of the company along with their PAN numbers, as well as complete particulars of all moveable and immovable assets held in their personal names and the dates of their acquisition, and the nature of the right, title and interest therein; (v) The address of the Registered Office and the Corporate or branch offices, if any, of the Respondent Company; (vi) The location of the statutory records and books of account of the company; (vii) The list of immovable assets, land and building etc. of the respondent company; (viii) The details of location of the assets of the company and their value; (ix) Details of the debtors and creditors of the company with their complete addresses; and (x) The details of workmen/employees and any amount outstanding to them. The said affidavits shall be filed within six weeks from today with an advance copy to counsel for the petitioner. In case, the said affidavits are not filed for any reason, the concerned Directors, including the Managing Director, of the respondent company shall remain personally present on the next date of hearing to enable this Court to examine them if required, on that date. Till the next date of hearing, the respondent company shall not dispose off or alienate or encumber either directly or indirectly, or otherwise part with possession of any assets of the company to the tune of Rs.45,00,000/-, except in the ordinary course of business and for the payment of salaries and statutory dues. Liston 12th January, 2016.” 2. On the previous date i.e. 12.01.2016, I had heard the learned counsel for the parties, whereupon, the counsel for the respondent had sought time to revert with instructions as to when and how dues claimed by the petitioner will be paid. 2.1 Mr. Singh, who appears for the respondent is still not able to tell me with exactitude as to what is the amount which is due according to the respondent. It is though not disputed, that some amount is due, which is surely above the prescribed amount. 2.2 As would be evident from the proceedings of 10.07.2015, the respondent had offered settlement at 50% of the amount claimed by the petitioner. This offer was made by the respondent in its e-mail dated 06.03.2013, to a communication sent by the petitioner, on 05.03.2013, wherein, it had stated that the amount to the tune of Rs.45 Lakhs was due. 2.3 In the notice issued by the petitioner, under Section 434 of the Companies Act, 1956, which is dated 01.04.2013, a specific demand in the sum of Rs.43,48,874, was raised. As indicated in the order dated 10.07.2015, this amount was due, according to the petitioner, as on 18.03.2013. 2.4 Admittedly, no response was issued by the respondent to the demand notice dated 01.04.2013. 3. In these circumstances, it is clear that the respondent has failed and neglected to pay the amount demanded by the petitioner. As indicated in the order dated 10.07.2015, this amount was due, according to the petitioner, as on 18.03.2013. 2.4 Admittedly, no response was issued by the respondent to the demand notice dated 01.04.2013. 3. In these circumstances, it is clear that the respondent has failed and neglected to pay the amount demanded by the petitioner. The logical presumption in law would be that the respondent is unable to pay its debts. 4. Accordingly, I have no hesitation in directing admission of the petition. The petition is, accordingly, admitted. Citations shall be published by the petitioner in the Times of India [(in English), Delhi Edition], the Jansatta [(in Hindi), Delhi Edition], as also, in the official gazette. 4.1 The official liquidator attached to this court is appointed as the provisional liquidator. 4.2 Mr. Behl, who is present in court, takes notice of the order passed today. 4.3 The provisional liquidator will take possession of all assets, as well as, books, documents and records etc of the respondent. The respondent is injuncted from selling, transferring, alienating or creating any third party interest in its assets. 4.4 A copy of the petition alongwith the annexures will be supplied by the learned counsel for the petitioner to the counsel for the official liquidator. 4.5 The Directors of the respondent company shall file their Statement of Affairs, as mandated under Section 454 of the Act within 21 days from today. 4.6 The Directors shall appear before the official liquidator on 29.02.2016, at 11.00 a.m., for having their oral statement recorded under Rule 130. 4.7 In the meanwhile, the counsel for the respondent will furnish the following information to the court, by way of an affidavit of its Director :- (i) The location of the registered office of the respondent company. (ii) The details of its assets; which would include their location. (iii) The details of its books of accounts, documents and records, etc. and place where they are located, in case, they are not available at the registered office. 4.8 A copy of this affidavit shall be supplied to the counsel for the petitioner as well as the official liquidator. 5. The official liquidator will file a status report before the next date of hearing. 6. List on 24.05.2016.