2016 (11) TMI 1072 - HC - Companies Law

Winding up petition - Held that - None has appeared for hearing following the admission. The respondent company is under an undischarged debt of the petitioner company having neglected to discharge its admitted debt as reflected in its balance sheet despite a statutory notice and is thus deemed to be insolvent. No dispute what of bonafide dispute obtains. The respondent company Golden Future Fertilizer Limited is directed to be wound up. The Official Liquidator is appointed as Liquidator of the respondent company under Section 448 of the 1956 Act. He shall take steps to take possession of the immovable and movable assets of the respondent company, if not so already done. The Directors of the respondent company are directed to file statement of affairs of the respondent company before the Official Liquidator as statutorily required. The citation of winding up of the respondent company be published by the petitioner in two news papers i.e. The Times of India (English) Delhi Edition and Dainik Bhaskar (Hindi) Jaipur Edition in terms of Rule 24 of the Companies (Courts) Rules, 1959.

Summary

Issues: Loan agreement breach, unpaid debt, winding up petition, appointment of liquidator, publication of winding up citation.

Loan Agreement Breach:
The petitioner company entered into a loan agreement with the respondent company, where a sum of &8377; 1.54 crores was advanced under three cheques. The cheques were encashed by the respondent company, and the loan was to be repaid with interest at the rate of 9% per annum. The respondent company provided original title deeds of immovable property as collateral security. Despite acknowledging the loan in its balance sheet, the respondent company failed to repay the debt, leading to the petitioner filing a winding up petition.

Unpaid Debt:
The respondent company neglected to repay the admitted debt owed to the petitioner company, as evidenced by its balance sheet and a statutory notice. No reply was filed to the company petition, and no bonafide dispute regarding the debt was raised. The court deemed the respondent company insolvent due to its failure to discharge the debt.

Winding Up Petition:
The court admitted the winding up petition based on the legal principles established in the case of Vijay Industries Vs. NATL Technologies Limited. The Official Liquidator was appointed as the Provisional Liquidator, and the winding up citation was published in newspapers and the Official Gazette. Despite no appearance for hearing post-admission, the court proceeded with the winding up order due to the respondent company's insolvency.

Appointment of Liquidator:
The court directed the winding up of the respondent company, appointing the Official Liquidator as the Liquidator under Section 448 of the 1956 Act. The Liquidator was tasked with taking possession of the company's assets if not already done. The directors of the respondent company were instructed to file a statement of affairs before the Official Liquidator as required by law.

Publication of Winding Up Citation:
The petitioner was directed to publish the winding up citation in two newspapers and the official gazette as per the Companies (Courts) Rules, 1959. All costs were to be borne by the petitioner company, and a copy of the order was to be provided to the Official Liquidator for compliance with the winding up process.