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2017 DIGILAW 368 (GAU)

P. N. Pharma Marketing Service Pvt. Ltd. v. Abhishek Motors Pvt. Ltd.

2017-03-23

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. J.C. Gaur, the learned counsel for the petitioner. None appears for the respondent Company on call today as well as on 31.01.2017, although their names appear in the cause-list. 2. The case of the petitioner is that they are engaged in the business of dealers and distributors of various items including lubricants. In course of business, the respondent Company, who are dealers in motor vehicles and also provide after-sales service approached them for supplying lubricants, grease, etc. on credit, promising to make payment within 15 days, failing which the petitioners were liable to claim interest @ 18% p.a. On supply of goods during the period from 01.04.2014 to 20.02.2016, bills were submitted against which part payments were made and as on 17.02.2015, there remained an outstanding amount of Rs.25,99,646/- to be payable by the respondent Company to the petitioner. Demanding the said money, an advocate’s notice as required under section 433 and 434 of the Companies Act, 1956 was issued to the Respondent Company and to its two Directors, requiring the payment to be made within 3 weeks together with interest @ 18% on the said outstanding amount. The said notices were sent by registered post, which was duly served on the Respondent Company on 07.03.2016 as per the returned postal acknowledgement card. Since no payment has been made till date, and the dues exceed the minimum amount of debt due prescribed under section 434(1)(a), the petitioner has grounds to deem that the respondent Company is unable to pay its debt and, as such, the present application has been filed. 3. The respondent Company has not filed any response to the present application despite due service of notice. Thus, there is no denial of the existence of business dealing of purchasing goods on credit by the respondent Company from the petitioner. Under the doctrine of non-traverse, the statements made in the present application are deemed to be fully admitted by the respondent Company. No one has represented the respondent Company today on call and, as such, there is no material available before this Court to show that the present winding up petition is being used as a means or a tool to enforce payment of a debt which the respondent is bona fide disputing. The elements of a bona fide dispute is totally found absence in the present case in hand. 4. The elements of a bona fide dispute is totally found absence in the present case in hand. 4. Thus, the inevitable conclusion of this court is that there is a total absence of a valid and/prima facie or bona fide defence on part of the Respondent Company in this case in hand, as such, a case for admission of the present Company Petition has been successfully made out. 5. So, the present application is admitted. Petitioner is directed to take steps for newspaper publication of advertisement of notice in The Assam Tribune, an English language daily and in Asomiya Pratidin, an Assamese language daily, widely circulated in the State of Assam in terms of requirement of Rule 24 read with Rule 99 of the Company Court Rules, 1959. The requirement, if any, of publication in the Official Gazette is dispensed with. The advertisement is to be published between 08.05.2017 to 18.05.2017, i.e. after 6 weeks from today. If in the meantime, the respondent Company pays the petitioner the sum of Rs.25,99,646.00 (Rupees Twenty five lakh ninety nine thousand six hundred forty six only) within a period of 6 (six) weeks from today i.e. on or before 06.05.2017, together with simple interest @ 6% per annum from 08.04.2016 i.e. the date of filing of this application till payment, the winding up application shall remain completely stayed. In default of payment, the stay will be vacated and the winding up petition shall be advertised as directed and listed on 19.06.2017. There shall be no order as to cost.