2009 (12) TMI 523 - HC - Companies Law

Summary

Issues:
Petition under section 433 of the Companies Act, 1956 for winding up of a company and appointment of a Provisional Liquidator due to failure to complete construction as per agreement.

Analysis:

Issue 1: Failure to Complete Construction
The petitioner entered into an unregistered Agreement to Lease with the respondent for a showroom in a mall to be constructed by the respondent. The agreement stipulated the completion deadline as 31-12-2007, subject to force majeure circumstances. The petitioner paid a security deposit equivalent to three months' rent as per the agreement. However, the respondent failed to complete the construction within the specified time frame, with over 20 months having passed since the deadline. The petitioner conducted a personal inspection, providing photographic evidence showing incomplete construction. Consequently, the petitioner issued a notice of winding up, demanding a refund of the security deposit along with interest and legal costs.

Issue 2: Legal Implications of Non-Response to Winding Up Notice
The judgment highlights the legal consequences of a company's failure to respond to a notice of winding up. Citing the case of Resham Singh & Co. (P.) Ltd. v. Daewoo Motors India Ltd., it is noted that non-response to a statutory winding up notice can lead to the admission of a winding up petition for hearing. The court may issue a notice to the respondent to show cause why the company should not be wound up. The judgment emphasizes the importance of considering the respondent's defense before making far-reaching winding up orders. The court can draw a presumption of indebtedness under section 434 of the Companies Act when no reply to the statutory notice is received, potentially leading to the admission of the petition and appointment of a Provisional Liquidator.

In conclusion, the judgment addresses the failure of the respondent company to complete construction as per the agreement, leading to a petition for winding up and the appointment of a Provisional Liquidator. It also elucidates the legal implications of non-response to a winding up notice, emphasizing the need for the respondent to show cause to avoid winding up orders.