2016 (3) TMI 1253 - HC - Companies Law

Winding up petition - appointment of Official Liquidator - unable to pay admitted dues - Held that - It is an admitted position that the respondent-Company is in a weak financial position and is unable to pay its admitted dues to the petitioner, this Court considers it appropriate to pass the following order (i) Admit. (ii) The Registry is directed to notify the petition for final hearing on 03.05.2016. (iii) The admission of the petition shall be advertised in the English daily newspaper The Times of India and the Gujarati daily newspaper Divya Bhaskar (both Ahmedabad Editions). (iv) The Official Liquidator attached to this Court is appointed as the Provisional Liquidator of the respondent-Company and is directed to take over the charge and possession of the assets of the respondent-Company and to prepare an inventory of the office premises, books of accounts and all other assets of the respondent-Company, as required by law.

Summary

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

Analysis:
The petitioner, a proprietary concern engaged in selling electronic products, entered into a Distributorship Agreement with the respondent-Company, a mobile handset manufacturer. Issues arose when the respondent-Company faced financial problems, leading to delays in launching new models and affecting dealers' payment cycles. Consequently, the dealers returned goods to the petitioner, leaving the respondent-Company indebted to the petitioner for over ?53 lakhs. Despite reminders and a statutory notice, the respondent-Company failed to clear the dues, citing financial constraints. The respondent-Company admitted its inability to pay the outstanding amount due to lack of working capital and financial market crunch.

In response to the petition, the respondent-Company filed an affidavit admitting the debt owed but contending that nonpayment should not lead to winding up. However, the court found the respondent-Company's stance contradictory to the record and the Companies Act. Counsel for the petitioner argued that the respondent-Company's financial crisis, as evident from documents and admissions, warranted winding up under Section 433(e) of the Companies Act.

During the hearing, the respondent-Company, represented by its Director, acknowledged its inability to pay the debt owed to the petitioner. Considering the admitted weak financial position of the respondent-Company and its inability to clear dues, the court made the following orders: admission of the petition, scheduling a final hearing, advertisement in newspapers, and appointment of the Official Liquidator as the Provisional Liquidator to take over assets and prepare an inventory as per legal requirements.