9911796707
TMI Blog2009 (10) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner P. H. Arvind Pandian for the Respondent JUDGMENT N. Paul Vasanthakumar, J. The prayer in this company petition is to wind up the respondent-company under the provisions of the Companies Act, 1956. 2. The petitioner-company is incorporated under the Companies Act, 1956, and its registered office is located at 10th Mile Stone, Mine Madhura Road, P. O. Ishwar Nagar, New Delhi-110 065. The authorised share capital of the petitioner-company is Rs. 20 crores divided into 1,00,00,000 equity shares of Rs. 10 each, and 1,00,00,000 cumulative shares at 12 per cent, of Rs. 10 each. The paid-up share capital of the petitioner-company is Rs. 17,20,39,000. The main object of the petitioner-company is to do business of manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional District Judge passed joint and several decree including against the defaulting company for a sum of Rs. 7,45,313 and further sum of Rs. 7,27,944.60 towards damages and also interest at the rate of 6 per cent, per annum from the date of filing of the suit, i.e., from July 6,1977, till the date of payment. As the default company was unable to pay its debts the petitioner filed a company petition before this court in C. P. No. 222 of 2001 against the default company for winding up. In the said petition, the default company filed an affidavit and memo stating that the matter is pending before the BIFR for reconstruction. Taking note of the said fact this court closed the company petition on September 8, 2003, with liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on March 31, 2009, there are 3,609 employees in the direct rolls of the company, apart from about 2,500 indirect employees working for the respondent-company. The company is a debt free company from the financial year 2004-05 and it is regularly paying dividend to its shareholders. It is further stated that the statutory notice was served on its unit address and not at the registered office address and therefore the service of notice itself is defective one, which is a statutory violation and the petitioner is not entitled to file the winding up petition on the basis of the above defective notice. It is also stated in the counter affidavit that the petitioner obtained an ex parte decree against M/s. Textool Co. Ltd., viz. , the default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished that the respondent-company is in sound financial position and it is a leading exporter of textile spinning machinery in the country. Out of the total installed capacity of 39 million spindles in India, 24 million spindles are supplied by the respondent-company alone. It is also the case of the respondent that the company is a debt free company from the year 2004-05 and the inability to pay the debt, if any, to the petitioner-company is also not established for maintaining the company petition. 10. In the counter affidavit it is further stated that the statutory notice was not served on the respondent's registered office and it was served only on its unit office and the same is in violation of section 434(1)( a ) of the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery case and come to a necessary conclusion. Needless to say that granting of the relief of winding up is a discretionary relief; but, the court when exercise this discretionary power, it must be governed by justice and equity. The court must exercise its discretion judiciously also. It is well-settled principle of law that if there is any substantial defence put forth by the respondent, the same has got to be decided by the court only on appreciation of evidence. Having filed a suit calling the respondent, the third defendant therein, as the agent of the first defendant and necessary issues having been framed touching the liability of all the defendants, filing a company petition like this was nothing but a device to pressurise for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edical System GmbH ); the Bombay High Court decision reported in [2001] 107 Comp. Cas. 288 ( Manipal Finance Corporation Ltd. v. CRC Carrier Ltd. ) ; and in the decision of mine in C. P. No. 107 of 2009 dated October 8, 2009 ( Chettinadu Constructions v. Muthukumarasamy Textiles Ltd. [2010] 156 Comp. Cas. 203 (Mad)). In the above referred decisions it is held that after commencement of the arbitration proceedings, no company petition for winding up can be admitted. 15. Applying the above principles stated in the above decisions to the facts of this case and having regard to the financial status of the respondent-company, I am of the view that the company petition filed by the petitioner-company to wind up the respondent-company i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
