2018 (12) TMI 1798 - HC - Companies Law

Winding up of respondent company - Sections 433 and 434 of the Companies Act, 1956 - time limitation - It is the case of the petitioner that in course of business transaction, the petitioner company delivered goods as indicated from the invoice cum delivery challan at Annexure B (collectively) to this petition - HELD THAT - There is no record even remotely suggesting that any complaint as regards quality of the goods was ever raised by the respondent company. The learned counsel for the respondent candidly submitted that the Bank has also taken action under the SARAFAESI Act which is subject matter of appeal before the Debt Recovery Tribunal wherein stay is granted and it was further submitted on behalf of the respondent company that if those proceedings are over, some payment can be made. It was also candidly submitted by the learned counsel for the respondent that on an inquiry made by the Court, temporarily respondent company is not in operation. Even the additional affidavit filed by the petitioner before this Court clearly mentioned that respondent company incurred loss in the year 2012, 2013 and 2014. Considering the date of invoice and the date of filing of this petition and even on the ground of limitation, prima facie present petition is within the time. Petition admitted.

Summary

Issues:
Winding up petition under Sections 433 and 434 of the Companies Act, 1956.

Analysis:
The petitioner filed a winding-up petition against the respondent company, Polo Ceramics Private Limited, seeking payment for goods delivered. The petitioner claimed that reminders were sent regarding outstanding payments, and cheques given by the respondent were returned. The statutory notice was sent but refused by the respondent company. The respondent raised the defense of inferior goods for the first time in the reply to the petition. The respondent company's defense that the statutory notice was not served was deemed untrue as the envelope sent by speed post was refused by the respondent. The respondent company also faced action under the SARFAESI Act by the bank, with ongoing proceedings in the Debt Recovery Tribunal. The respondent informed the court that the company was temporarily not in operation, and the petitioner's additional affidavit stated that the respondent incurred losses in the years 2012, 2013, and 2014. The court found the petition to be within the time limit and admitted it for further proceedings.

The court heard arguments from both parties and found merit in the petitioner's claims. The petition was admitted, and an order was issued to advertise the admission in specified newspapers. The final hearing was scheduled for a future date to resolve the matter comprehensively.