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TMI Blog2016 (2) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets, properties, income and books of accounts with all the powers under the provisions of Companies Act, 1956; d) pending the hearing and final disposal of the Petition, the Company, its Directors, Managers, Agents, Servants, Officers and employees be restrained by an order of injunction of this Hon'ble Court from any manner dealing with, disposing of or parting with the possession, alienating, transferring or selling or encumbering or creating third party rights on any of the assets and properties of the Company or on any part thereof; e) for ad interim reliefs in terms of prayers (c) and (d); f) this Hon'ble Court be pleased to pass such further and other orders as the nature and circumstances of the case may require; g) the costs of the present Petition be granted to the Petitioner." 2. The petitioner is a Company incorporated under the provisions of the laws of Kenya and is carrying on the business of exporting grains to various countries, including India. The respondent-Company was incorporated on 18.12.2006, under the provisions of the Companies Act, 1956. 3. It is stated in the petition that the petitioner is carrying on the business of trading and exporting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.04.2014, denying the averments made in the statutory notice issued by the petitioner and contending that the notice was vague and, therefore, the petitioner was advised to call for strict and proper evidence in support of its claim. It is the case of the petitioner that the denial in the reply dated 05.04.2014, is without justification and not bona fide, but has been made only with a view to avoiding and/or delaying the payment of the outstanding dues of the petitioner. The petitioner, therefore, issued a letter dated 10.04.2014, to the respondent-Company, through its advocate, reiterating its claim. No reply was received by the petitioner to this communication. The petitioner has, therefore, approached this Court with a prayer to issue an order of windingup in respect of the respondent-Company which, according to it, is unable to pay its debt and is commercially insolvent. 5. This Court has heard Mr.A.S.Vakil, learned advocate for the petitioner and Mr.Niral Mehta, learned advocate for the respondent. 6. It is submitted by Mr.A.S.Vakil, learned advocate for the petitioner, that there is no dispute, whatsoever, in respect of the goods sold and delivered to the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 9. That, a false and misleading statement has been made by the respondent-Company in the affidavitinreply, by stating that the respondent-Company is a profitmaking Unit and is paying all other statutory dues and commercial liabilities without any default, therefore, it cannot be said that the respondent-Company is unable to pay its dues. 10. Learned counsel for the petitioner has submitted that the respondent-Company is in debt to the State Bank of India, which has issued public notices in the English daily newspaper "The Times of India" on 10.11.2015. In one of the notices, the respondent-Company is one of the guarantors, as is Mr.Vijay Arvindbhai Patel, the deponent of the affidavitinreply and the affidavitinsurrejoinder. In the other notice, the respondent-Company is the borrower. Proceedings are pending under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("the SARFAESI Act") against the petitioner at the behest of the State Bank of India, therefore, it cannot be said that the respondent-Company is making payment of all its statutory dues and commercial liabilities without any default. It is submitted that the averm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that it has lost its financial substratum, therefore, the petition be admitted and advertised. 15. Per contra, Mr.Niral Mehta, learned advocate for the respondent-Company, has submitted that the respondent-Company was importing goods from the petitioner through M/s.Unisilk Limited. There was a mutual agreement between the petitioner and the respondent-Company that the petitioner would sell the goods to M/s.Unisilk Limited but the goods would be delivered directly to the respondent by the petitioner. In support of this submission, learned counsel for the respondent-Company has drawn the attention of the Court to the invoices at AnnexureI collectively, by submitting that the numbers and dates of the invoices are the same as the seven invoices produced by the petitioner and the invoices produced by the respondent show that payment for the goods in question was made to M/s.Unisilk Limited by the respondent-Company. 16. It is further submitted on behalf of the respondent that the Bank has also cleared the said payment and it was M/s.Unisilk Limited that was to further transmit the amount to the petitioner as per the mutual agreement. The respondent-Company has, therefore, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory notice by annexing the Statement of Account, detailing the relevant invoices. In its reply to the statutory notice dated 05.04.2014, the respondent-Company has only stated that the allegations against it are not specifically admitted by it and that the petitioner has not given a correct version of facts and the notice is vague. It is further stated that the notice is concocted and fabricated and is, therefore, disputed and not accepted by the respondent-Company. There is no denial in the said reply, of the transactions between the parties or the payments due to the petitionerCompany on account of those transactions. Nor has it been stated that the respondent-Company has already made the payments to M/s.Unisilk Limited, for further onward transmission to the petitioner. The stand now being taken by the respondent-Company in the oral submissions and the pleadings before this Court is, therefore, at divergence with the stand taken in the statutory notice. 23. The respondent-Company claims to have a turnover of rupees one hundred crores in the year 201415. Though no balancesheet or other documents are produced to substantiate this claim of the respondent-Company, even if the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, there is no material on record to show that the respondent-Company has filed its annual financial statements for the financial year 201415 on the portal of the Ministry of Corporate Affairs, as required. 27. In the above background, on the basis of the material on record, the petitioner has succeeded, in primafacie establishing its case, especially, as the respondent-Company has not denied that it was liable to make the payment for the goods supplied by the petitioner which, according to it, was made to M/s.Unisilk Limited. 28. Considering all the above aspects and as no material has been produced on record substantiating the claim of the respondent-Company regarding the mutual agreement between the parties to make the payment through M/s.Unisilk Limited, in the view of this Court, the petition deserves to be admitted. 29. Hence, the following order: 30. Admit. 31. The Registry is directed to notify the present petition for final hearing on 10.03.2016. The admission of the petition shall be advertised in the English daily newspaper "The Times of India", Ahmedabad Edition and the Gujarati daily newspaper, "Jansatta", Ahmedabad Edition. 32. The Official Liquidator attached ..... X X X X Extracts X X X X X X X X Extracts X X X X
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