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TMI Blog2016 (2) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the petitioner's entitlement for various reason, it cannot be concluded that the liability regarding payment of salary as claimed by the petitioner stands proved/admitted by the Respondent Company and therefore, this Court is not inclined to direct winding up of the Respondent Company in terms of provisions of Section 433(e) of the Act. Merely because a company has suffered loss in a particular financial year, it does not lead to conclusion that the position is irreversible and the financial condition of the company is deteriorated to such an extent that there is no possibility of revival. On the facts and the circumstances of the case, this Court is of the considered opinion that no just and equitable grounds exist for winding up of the company in terms of provisions of Section 433(f) of the Act either. Petition dismissed - Decided against the appellant. - S.B.COMPANY PETITION NO.9/13 - - - Dated:- 8-10-2015 - MR. SANGEET LODHA, J. For The Petitoner : Mr. Siddharth Tatia For The Respondent : Mr. Vikas Balia with Mr.Arjun Bhattar 1. This Company Petition under Section 433 read with Sections 434 and 439 of Companies Act, 1956 (for short the Act ) has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent Company having failed/neglected to pay the outstanding dues of the petitioner, it has to be presumed that the Respondent Company is unable to pay its debts. It is submitted that the financial condition of the Respondent Company is not good and with a view to defeat the claims of the creditors including that of the petitioner, the Respondent Company is in process of disposing off and/or siphoning its assets. Accordingly, it is contended that the Respondent Company is liable to be wound up under the provisions of Clause (e) and (f) of Section 433 of the Act. 3. A reply to the company petition has been filed on behalf of the Respondent Company raising preliminary objection in terms that there is no admitted liability of the Respondent Company and the question with regard to outstanding salary, if any, cannot be adjudicated by the Company Court. It is submitted that the petitioner who was associated with the Respondent Company in a defined capacity cannot claim himself to be creditor of the company. Replying to the averments made in the company petition, the Respondent Company has taken the stand that the petitioner has resigned from services since September, 2012 and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner's resignation dated 7.8.12 was never accepted. It is submitted that on account of non filing of Form No.32, the petitioner was unable to join as Company Secretary in any other company and thus, suffered the loss of income which he is entitled to recover from the Respondent Company. The petitioner while setting out the details of the Profit and Loss Account of the Respondent Company of financial year 2013-14 has pointed out that the Company has booked a cash loss of ₹ 5,95,99,563/- and its fixed assets have reduced by ₹ 1,79,01,676/- and current assets have also reduced by ₹ 6,37,81,287/-. Accordingly, it is submitted that the Respondent Company is not in good financial health. 5. I have heard the learned counsel for the parties and perused the material on record. 6. Learned counsel appearing for the petitioner contended that the unpaid salary of an employee would constitute debt and therefore, the petitioner whose arrear of salary has not been paid has to be treated a creditor and the petition preferred by the petitioner on account of inability of the Respondent Company to pay the debt is maintainable. In this regard, learned counsel has rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd thus, allegation of the petitioner regarding financial condition of the company being not good, is absolutely baseless. 8. I have considered the rival submissions and perused the material on record. 9. Indisputably, the petitioner had resigned from service on 7.8.12. According to the Respondent Company, the resignation tendered by the petitioner was accepted on the same day, but he continued to attend the office of the Company intermittently uptil January, 2013, for completing the pending work and he has been paid the salary upto the month of January, 2013. As per the stand of the Respondent Company, the petitioner deliberately did not file Form 32 and thus, failed to comply with legal and statutory obligation for a period of 4 months and therefore, the Company had no option but to file Form 32 on its own showing the cessation of the petitioner on 6.3.13 and on that account, suffered penalty for late filing. But then, as per the mandate of provision of Section 303(2) of the Act, it was statutory obligation of the Respondent Company to file the necessary information regarding the change, in the prescribed form, within a period of 30 days and thus, the lapse, if any, in fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us reason, it cannot be concluded that the liability regarding payment of salary as claimed by the petitioner stands proved/admitted by the Respondent Company and therefore, this Court is not inclined to direct winding up of the Respondent Company in terms of provisions of Section 433(e) of the Act. 14. The petitioner has attempted to project that the Respondent Company is not maintaining good financial health inasmuch as it has suffered loss during the Financial Year 2013- 14 and its fixed assets has reduced by ₹ 1,79,01,676/- and current assets have also reduced by ₹ 6,37,81,287/-. The position of the Company subsequent to Financial Year 2013-14 is not brought on record. The fact that the Respondent Company has been extended term loan by the Bank of Baroda for expansion is not disputed by the petitioner. In the considered opinion of this Court, merely because a company has suffered loss in a particular financial year, it does not lead to conclusion that the position is irreversible and the financial condition of the company is deteriorated to such an extent that there is no possibility of revival. On the facts and the circumstances of the case, this Court is of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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