2016 (7) TMI 1659 - HC - Companies Law

Service of notice - notice was returned with the endorsement Unclaimed - winding up petition - HELD THAT - Since unclaimed is a good service inasmuch as having regard to the fact that there is no contemporaneous denial on the claim of the petitioner and the company has evaded the service of the notice, it can be presumed that the company has no defence to the claim of the petitioning creditor. Under such circumstances, the winding up petition is admitted for a sum of Rs.10.26 lakhs together with interest at the rate of 6% per annum on and from June, 2016. In the event, the company pays off the aforesaid sum in four equal monthly instalment commencing from 8th August, 2016 and payable by 8th day of each and every succeeding month, the company petition shall be remained permanently stayed.

Summary

Issues Involved:
- Unpaid vendor claim for goods sold and delivered
- Failure of the company to pay the outstanding balance
- Admittance of winding-up petition
- Terms of repayment and stay of petition
- Advertisement in case of default
- Communication of order to the company

Unpaid Vendor Claim for Goods Sold and Delivered:
The petitioner, an unpaid vendor, sold and delivered petroleum products to the company between December 2011 and June 2013, amounting to Rs.24,02,546. The company accepted and consumed the goods without objection but failed to pay the balance amount of Rs.10,25,745. Despite a supplementary notice being returned as 'Unclaimed,' the winding-up petition was served on the company.

Failure of the Company to Pay the Outstanding Balance:
The company, despite making a partial payment of Rs.13,76,801, neglected to pay the remaining balance owed to the petitioner. The court noted the company's failure and negligence in paying the outstanding sum, leading to the issuance of the winding-up petition.

Admittance of Winding-Up Petition:
Due to the company's non-representation and evasion of service, the court admitted the winding-up petition for the outstanding sum of Rs.10.26 lakhs along with 6% interest per annum from June 2016. The court presumed that the company had no defense to the petitioner's claim based on the circumstances.

Terms of Repayment and Stay of Petition:
In the event that the company pays the outstanding sum in four equal monthly installments starting from August 8, 2016, and continuing on the 8th day of each subsequent month, the petition would be permanently stayed. This condition aimed to provide the company with an opportunity to settle the debt and avoid further legal action.

Advertisement in Case of Default:
In case of default in payment, the court ordered the petition to be advertised in specific newspapers, indicating the next court appearance date. The publication in the Official Gazette was dispensed with, and the company was required to be informed of this order within a week by speed post.

Communication of Order to the Company:
The petitioning creditor was directed to communicate the court's order to the company promptly, ensuring that the company was aware of the terms and conditions set forth in the judgment. Additionally, the parties were allowed to obtain urgent certified copies of the order upon compliance with necessary formalities.