2015 (11) TMI 1549 - HC - Companies Law

Winding up orders - Held that - As clear from the record that the respondent has not given the reply to the statutory notice. Thereafter, in pursuance to the notice issued by this Court, the respondent has not remained present before this Court. Even after the admission of petition and publication of advertisement, appearance is not filed by the respondent. Thus, in absence of any defence put forward by the respondent, it is of the opinion that the case of the petitioner deserves to be considered. Accordingly, this petition is allowed. The Official Liquidator attached to this Court is appointed as Liquidator of the respondent company with all the powers conferred upon him under the provisions of the Companies Act of 1956.

Summary

Issues:
Petition for winding up under Sections 433 and 434 of the Companies Act of 1956 due to outstanding dues.

Analysis:
The petitioner filed a petition seeking the winding up of the respondent company under Sections 433 and 434 of the Companies Act of 1956, citing outstanding dues of Rs. 65 lacs with 18% interest. Despite the service of statutory notice, the respondent failed to pay the outstanding amount or provide any response. The petitioner requested the court to appoint the Official Liquidator as the Liquidator of the respondent company and take possession of its assets, properties, documents, and records.

The High Court issued notice to the respondent, which was duly served. The respondent, however, did not file an appearance. Subsequently, the court admitted the petition and allowed the petitioner to publish advertisements regarding the admission. Despite these actions, the respondent continued to remain absent from court proceedings. Following a series of court orders, including the appointment of the Official Liquidator as Provisional Liquidator, the matter was listed for further hearings, with the respondent consistently failing to appear.

During the final hearing, in the absence of the respondent, the petitioner's advocate highlighted the facts of the case, emphasizing the respondent's failure to pay the outstanding dues and the lack of response to the statutory notice. The court observed the respondent's continued non-appearance and non-compliance, leading to the presumption that the respondent company was unable to pay its debts, as per Section 434 of the Companies Act of 1956. Consequently, the court deemed it appropriate to grant the petitioner's request for the winding up of the respondent company.

After considering the arguments presented, reviewing the materials on record, and noting the respondent's persistent non-engagement, the court concluded in favor of the petitioner. The court allowed the petition, appointing the Official Liquidator attached to the court as the Liquidator of the respondent company, with full powers conferred by the Companies Act of 1956 to oversee the winding up process effectively.