2010 (9) TMI 929 - HC - Companies Law

Winding up petition - Held that - From the material on record, it is seen that the respondent-company was found due certain money to the petitioner as on 24-2-1995. The amount due to the petitioner is under a decree of the Court in case No. LE and C Suit No. 32/38/1992. The present petition is filed on 5-6-2000. Therefore, the claim of petitioner is within the time and not barred by limitation. Therefore, there is no substance in the contention of the respondent-company that the claim of the petitioner is barred by time. The petition is hereby allowed.The Official Liquidator is appointed as liquidator of the respondent-company.Petitioner-company shall deposit a sum of ₹ 25,000 with the Official Liquidator to meet the initial winding up expenses. Petitioner-company to take out advertisement of this order in one edition of The Hindu English Newspaper within fourteen days from the date of receipt of copy of this order. Petitioner-company to serve certified copy of this order with the Registrar of Companies within thirty days from the date of receipt of copy of this order. Ordered accordingly.

Summary

Issues:
- Winding up petition under section 433(e) and (f) of the Companies Act, 1956
- Claim of petitioner for unpaid charges and dues
- Barred by limitation contention by respondent-company
- Determination of amounts payable by the respondent-company
- Appointment of Official Liquidator as liquidator

Analysis:

1. The petitioner sought winding up of the respondent-company under section 433(e) and (f) of the Companies Act, 1956, due to non-compliance with a leave and licence agreement, leading to a compromise decree in LE and C Suit No. 32/38/1992. Subsequent legal actions, including contempt proceedings and execution proceedings, were initiated by the petitioner due to non-payment of agreed charges by the respondent-company.

2. The respondent-company contended that the claim was barred by limitation and denied liability to pay any dues. However, the court admitted the petition in 2005 and permitted the petitioner to advertise for objections, which were not received. The court reviewed the compromise decree and the subsequent legal proceedings to determine the amounts payable by the respondent-company.

3. The court found that the claims made by the petitioner were within the time limit and not barred by limitation. The determination of amounts payable to the petitioner was established through various legal proceedings, including LE and C Suit No. 32/38/1992, Misc. notice No. 535/1995, and revision application No. 62/1996. The respondent-company was deemed unable to pay the debts owed to the petitioner.

4. Consequently, the court allowed the petition, appointed the Official Liquidator as the liquidator of the respondent-company, and directed the petitioner to deposit a sum for initial winding up expenses. The petitioner was also instructed to advertise the winding up order and serve a certified copy to the Registrar of Companies within specified timelines. The court's decision was based on the established legal proceedings and the respondent's failure to pay the outstanding dues.

5. In conclusion, the judgment granted the winding up petition based on the non-payment of dues by the respondent-company, as determined through legal proceedings and the compromise decree. The appointment of the Official Liquidator and the specified actions for winding up were in accordance with the Companies Act, 1956.