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TMI Blog2016 (4) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, appointed by the learned single Judge, has taken charge and further proceedings are initiated by him in respect of the winding-up of the appellant- Companies and the same are pending progress. Thus, from the above facts and circumstances of the case and on a perusal of the above provisions of law, it is clear that inspite of issuance of such notices, the appellant-Companies failed to pay the amounts due to the respondent-Company within the stipulated time as per the provisions of the Companies Act. Thus, it has to be held that the appellant-Companies have been wilfully evading the payments due to the respondent-Company. Therefore, as per the above provisions of the Companies Act, the respondent-Company has every right to file the Company Petitions seeking for winding-up of the appellant-Companies before the Company Court. - O.S.A Nos 252 And 253/2014, M.P.No.1/2014 in each O.S.A - - - Dated:- 5-1-2016 - S. Tamil Vanan And G. Chockalingam, JJ. For the Petitioner : Mr V Pavel For the Respondents : Mr C A Diwakar JUDGMENT Original Side Appeal No.252 of 2014 is filed against the order dated 11.09.2014 passed by the learned single Judge in Company Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blish the Company Petition in one issue of English Daily viz., The New Indian Express circulated in Chennai and one issue of Tamil Daily viz., Daily Thanthi circulated in Chennai and also in the Tamil Nadu Government Gazette, by fixing 14 days in clear advance by fixing the hearing date as 27.10.2014. vii) The Official Liquidator, High Court, Madras is appointed as Provisional Liquidator and is directed to take charge of the assets of the respondent-Company. The Ex-Directors of the respondent-Company are directed to file their statement of affairs before the Official Liquidator within a period of 21 days. The Company shall deposit a sum of ₹ 10,000/- (Rupees ten thousand only) towards initial expenses before the Official Liquidator in this matter. Post the matter on 27.10.2014. 4. Learned counsel for the appellant-Companies contended that the learned single Judge has not properly appreciated the merits of the case. He further submitted that there is no basis for winding up of the appellant-Companies at the instance of the creditor, without following due process of law and the learned single Judge has not considered the serious consequences involving the win ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) 1971 (3) SCC 632 (Madhusudan Gordhandas Co. Vs. Madhu Woollen Industries (P)Ltd.) 20. Two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. (See London and Paris Banking Corporation - (1874) LR. 19 Eq. 444). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been properly was not allowed. (See Re. Brighton Club and Horfold Hotel Co. Ltd. - (1865) 35 Beav. 204) (d) 2009 (3) SCC 527 (Vijay Industries Vs. NATL Technologies Ltd.): 39. It is, however, of some interest to note that the Division Bench (in Mediquip Systems case - 2005 (7) SCC 42, SCC p.50, para 24) referred to a decision of the Madras High Court in Tube Investments of India Ltd. Vs. Rim and Accessories (P) Ltd. - 1990 (3) Comp.L.J. 322 (Mad) where the following principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act: Section 433: Circumstances in which company may be wound up by Tribunal: A company may be wound up by the Tribunal,-- .... .... (e) if the company is unable to pay its debts; (f) if the Tribunal is of the opinion that it is just and equitable that the company should be wound up; Section 434: Company when deemed unable to pay its debts: (1) A Company shall be deemed to be unable to pay its debts- (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one lakh rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; .... ..... Section 439: Provisions as to applications for winding up-(1) An application to the Tribunal for the winding up of a company shall be by petition presented, subject to the provisions of this section,-- (a) .... (b) by any creditor or creditors, including a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, failing which my client will be obliged to initiate such action as they are advised including filing of winding up petition against you. The charges of this notice ₹ 1500/- is also payable by you. 12. On 22.02.2010, the respondent-Company sent notice to the appellant- R.R. Info. Park Pvt. Ltd. (appellant in O.S.A.No.253 of 2014) to its Ambattur address and again on 22.05.2010, the respondent-Company sent notice to the appellant-R.R. Info. Park Pvt. Ltd. (appellant in O.S.A.No.253 of 2014) to its Guindy address, in which, it is stated as follows: 3. As the amount due to my client has not been settled inspite of several demands, my client has no other option other than to issue this legal notice. My client has already issued notice dated 02/05/2009 through me and the same may be read as part and parcel of this notice. After my earlier notice dated 02/05/2009 you have made a part payment of ₹ 3,00,000/- only and no further payment has been made by you. Hence this notice is issued afresh. The amount due to my client is an admitted sum and a liquidated one. Though my clients are entitled to claim interest on each billing, they are restricting their claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. 16. The decisions relied on by the learned counsel for the appellant- Companies are not applicable to the facts of the present case, since the amounts due to the respondent-Company have been clearly specified in the notices stated above, which are not disputed by the appellant-Companies. 17. Thus, from the above facts and circumstances of the case and on a perusal of the above provisions of law, it is clear that inspite of issuance of such notices, the appellant-Companies failed to pay the amounts due to the respondent-Company within the stipulated time as per the provisions of the Companies Act. Thus, it has to be held that the appellant-Companies have been wilfully evading the payments due to the respondent-Company. Therefore, as per the above provisions of the Companies Act, the respondent-Company has every right to file the Company Petitions seeking for winding-up of the appellant-Companies before the Company Court. 18. Hence, we are of the considered view that there is no illegality or infirmity in the impugned orders passed by the learned single Judge. The learned single Judge, after perusing the entire materials available on record and following the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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