2018 (11) TMI 109 - HC - Companies Law

Winding up of the respondent Company - failure to pay dues - in defense, company submitted that the invoices in question are for the period w.e.f. 2010- 2011 whereas the present winding up petition has been filed in May, 2016 - Held that - This court has today admitted the said petition holding that the defence of the respondent is not bonafide. For the same reasons, the present petition is also admitted. Consequently, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers Statesman (English) and Veer Arjun (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication is to be borne by the petitioner who shall deposit a sum ₹ 75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him.

Issues: Petition under Sections 433(e), (f), 434(1)(a), and 439 of the Companies Act, 1956 seeking winding up of the respondent Company. Defense raised on the grounds of limitation. Admittance of the winding up petition based on the defense of the respondent.

Analysis:
1. The petitioner filed a petition seeking winding up of the respondent Company under Sections 433(e), (f), 434(1)(a), and 439 of the Companies Act, 1956, due to an outstanding amount of &8377; 2,50,000 remaining unpaid for the period from February 2010 to March 2011. The petitioner had published advertisements for the respondent's products in their publication, and despite partial payment, a significant sum was still outstanding.

2. The main defense raised by the respondent was the plea of limitation, arguing that the invoices in question dated back to 2010-2011, while the winding-up petition was filed in May 2016. The respondent contended that the claims were time-barred due to the lapse of time. Additionally, a similar defense on the grounds of limitation was raised by the respondent in another winding-up petition involving a sister concern of the respondent company.

3. The court admitted the winding-up petition, citing that the defense of the respondent regarding the limitation was not bona fide. The Official Liquidator was appointed as the Provisional Liquidator and directed to take over all assets, books of accounts, and records of the respondent-company. Citations were ordered to be published in newspapers and the Delhi Gazette, with the petitioner bearing the cost of publication.

4. In the interest of justice, the court suspended the order appointing the Official Liquidator as the Provisional Liquidator for four weeks to allow the respondent to pay its debts. If the necessary payment of &8377; 2,50,000 was made within the stipulated time, the order appointing the Official Liquidator would be recalled. The case was listed for further proceedings on a specific date.

← Previous Next →