2007 (9) TMI 414 - HC - Companies Law

Winding up - Circumstances in which company may be wound up - Held that - Having once accepted and waived the notice, the requirement of rule 28 is not necessary. In this background the facts and averments made in the petition remain uncontroverted. Even assume for a moment some defence was raised at the time of the petition but at this stage of time, the respondent-company ought to have submitted their defence as well as admitted the present petition. The court has rejected all those defence. The order dated December 16, 2004, also remains intact. In this background, in the absence of specific positive steps or any additional affidavit or fresh affidavit, I am of the view that as the averments made remained uncontroverted including the fact and demand of ₹ 26,35,00,000. It appears that, ultimately the dispute as raised was not bona fide, the claim as such is also within the limitation.

Issues:
1. Invocation of provisions of sections 433 and 434 of the Companies Act, 1956 due to non-payment by the respondent-company.
2. Debt owed by the respondent-company to the petitioner.
3. Execution of guarantees by the respondent-company in favor of the petitioner.
4. Resistance by the respondent-company to the winding-up petition.
5. Compliance with Companies (Court) Rules, 1959 regarding notice to the company in a winding-up petition.

Issue 1:
The petitioner-bank invoked sections 433 and 434 of the Companies Act, 1956, as the respondent-company failed to make a payment of Rs. 26,35,00,000 despite receiving a statutory notice. The petitioner sought winding up of the company due to its inability to pay debts.

Issue 2:
The respondent-company owed Rs. 27,66,53,538.95 to the petitioner as of November 15, 2002, and had executed guarantees in favor of the petitioner for sums exceeding Rs. 33 crores. Despite demands and notices, the respondent failed to pay the outstanding dues.

Issue 3:
The respondent-company resisted the winding-up petition, claiming the absence of a crystallized debt due to security held by the petitioner. However, the court found the claim amount sufficient to consider the petition and dismissed the defense raised by the respondent.

Issue 4:
The court emphasized the importance of compliance with Companies (Court) Rules, 1959, regarding notice to the company in a winding-up petition. Waiver of notice by the respondent did not negate the necessity of following the prescribed procedures, as failure to comply could lead to dismissal of the petition.

Issue 5:
The court, after considering the uncontroverted facts and averments in the petition, rejected the defenses raised by the respondent. The court allowed the petition, granting the prayers sought by the petitioner, with the order coming into force after two months to provide the respondent an opportunity to settle the matter or make the demanded payment.

This judgment underscores the legal recourse available to creditors under the Companies Act, 1956 when faced with non-payment by a company. It highlights the significance of executing guarantees and the consequences of failing to meet financial obligations. Moreover, it emphasizes the necessity of adhering to procedural rules in winding-up petitions to ensure fair and transparent proceedings. Ultimately, the court's decision to allow the petition after considering all relevant factors showcases the importance of upholding legal obligations in commercial transactions.

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