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TMI Blog2012 (6) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... nd under the orders and directions of this hon'ble court under the provisions of the Companies Act, 1956. ( b ) the official liquidator attached to the High Court Gujarat, Ahmedabad be appointed as liquidator of the company with all powers under the Companies Act, 1956, including the power to take charge of the assets, affairs, books of account, documents, vouchers, bills, etc., of the company. ( c ) pending the hearing and final disposal of this petition, the official liquidator attached to the High Court, Gujarat, Ahmedabad or some other fit and proper person be appointed as the provisional liquidator of the company and its properties, assets, incomes and also business of the company with all powers under the Companies Act, 1956, including the power to take charge of the assets, records, documents, papers, vouchers, bills, etc., of the company. 2. The petitioner-company also prayed that the respondent be restrained from transferring or alienating properties in any manner. The petition is taken out on the ground that the petitioner supplied various goods/materials to the respondent and had raised invoices in respect of goods supplied. It is also claimed that from time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sues and questions of fact and that therefore the petition for winding up of the company may not be entertained more particularly when the respondent-company is a going concern. 6. Heard Ms. Parikh, the learned advocate for the petitioner and Ms. Sheth, the learned advocate for the respondent. 7. Before proceeding further it is appropriate and necessary to note at the outset on earlier occasion the proceeding of this petition have been adjourned at the request of learned advocate for the respondent on the ground that the respondent intend to settle the matter. On various occasions the petition was adjourned on the ground that though principally the parties have arrived at the settlement however, fine tuning to the terms and conditions of the respondent to be settled between the parties and therefore, time was requested. Ultimately on August 24, 2011, it was submitted by learned advocate for the respondent that the parties have already arrived at the settlement and duly signed consent terms will be placed on record on August 30, 2011. On such submission, proceedings of the petition was adjourned to August 30, 2011. Subsequently on August 30 and September 8, again request for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us reminders forwarded by the petitioner demanding payment the respondent had raised any dispute with regard to goods. She submitted that ultimately when the respondent did not respond to the request for payment towards invoices, ultimately the petitioner was constrained to issue statutory notice raised demand against the respondent-company by way of statutory notice dated March 31, 2010. It is asserted that notice has been duly served and delivered to the respondent at its registered office. 13. On the strength of such submission and the document annexed to the petition including copy of the statutory notice, learned advocate for the petitioner submitted that the respondent-company has neglected to make payment. She also submitted that the respondent does not have the ability to make payment and that therefore, the petition deserves to be admitted and the petitioner-company is entitled to pray for order of winding up against the respondent-company. 14. Ms. Sheth, the learned advocate for the respondent opposed the petition and submitted that claim against the respondent is baseless. She submitted that there is no material on record to show that the respondent issued or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the details mentioned by the petitioner-company with regard to delivery notes (paragraph 8 of the petition) and/or the documents purporting to be the delivery notes at annexure B pages 15 and 16 were also not contemporaneously disputed by the respondent. 19. The petitioner has specifically averred in paragraph 8 of its petition that : "The petitioner states that the material supplied to the company were found to the satisfaction of the company and the company never raised any dispute for the supplies made to it pertaining to the price, quality and/or quantity thereof, the respondent-company has acknowledged the supply of all the materials by confirming the delivery notes. Copies of the delivery notes duly acknowledged by the respondent-company are annexed herewith as annexure B." 20. As noted above in the reply affidavit the respondent-company has stated that the petitioner has conveniently not given details about placing of the oral order by the respondent-company and has not given details about the orders and on which dates the orders were passed and/or for which material orders were placed. The respondent has also stated that the petitioner has not bothered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears to the court that the defence is not bona fide and when it also appears to the court that the petitioner has sustainable claim against the respondent then the court would admit the petition as the petitioner can ask for an order of admission ex debitio justitio. 31. In the present case after due consideration of the document relied on by the petitioner and after considering the reply-affidavit by the respondent and other connected factual aspect for which reference has been made hereinabove, I am satisfied that the explanation tendered by the respondent is an afterthought and not bona fide. Therefore, the following order is passed. 32. Admit. 33. So far as the question of giving an opportunity to the respondent to make payment and/or to deposit the amount is concerned as noted hereinabove earlier several opportunities were granted by adjourning the petition and at one stage it was mentioned by the respondent that the parties have arrived at the settlement and the consent terms were also drawn which were only to be signed and presented on the record. 34. However now the respondent has referred to contest the petition on merits. Under the circumstances as such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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