2003 (12) TMI 335 - HC - Companies Law

Issues Involved:
1. Whether the impugned order admitting the winding-up petition is a non-speaking order.
2. Whether the admission of Company Petition No. 540 of 2000 alone justifies the admission of the present company petition.
3. Whether the company has raised a bona fide dispute to the claim.

Issue-wise Detailed Analysis:

1. Whether the impugned order admitting the winding-up petition is a non-speaking order:

The appellant argued that the impugned order is not a speaking order, which affects the rights of the parties and must be supported by reasons. The appellant relied on the Division Bench judgment in *Western India Theatres Ltd. v. Ishwarbhai Somabhai Patel* and the case of *Vasudeo Vishwanath Saraf v. New Education Institute*. The court observed that the order of admission of the winding-up petition is statutory appealable under section 483 of the Companies Act. The court emphasized that an order admitting the company petition does not determine the facts or law but only indicates that the petition discloses a prima facie case that needs to be tried. The court concluded that the Company Judge's order cannot be faulted on the ground that it is a non-speaking order, as it only signifies that the petition is not liable to be summarily dismissed and requires further inquiry.

2. Whether the admission of Company Petition No. 540 of 2000 alone justifies the admission of the present company petition:

The court noted that the Company Judge admitted the company petition for two reasons: (1) Company Petition No. 540 of 2000 had already been admitted against the company, and (2) the present company petition deserved to be admitted in the opinion of the Company Judge. The court clarified that the admission of a company petition indicates that the matter requires consideration and is not liable to be summarily dismissed. The court supported the Company Judge's decision, stating that it is not merely the admission of the earlier petition but also the prima facie view that the present petition deserved to be admitted.

3. Whether the company has raised a bona fide dispute to the claim:

The appellant contended that the company had raised a bona fide dispute regarding the claim, arguing that the petitioner's claim was false and that the company had a counterclaim due to the supply of impure gold. The court examined the material and found that the company issued seven cheques aggregating Rs. 31,36,200, which were dishonored. The court also noted that Company Petition No. 540 of 2000 and a few other winding-up petitions against the company had been admitted. Based on these facts, the court inferred prima facie that the company was unable to pay its debts and concluded that the admission of the company petition and advertisement did not suffer from any illegality.

Conclusion:

The court dismissed the appeal, stating that the impugned order admitting the winding-up petition was justified and did not require interference. The court also noted that the advertisement of the company had already been effected, and a provisional liquidator had taken charge of the company's properties and affairs.

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