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TMI Blog2018 (9) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... company. 4/ Earlier Inspite of service of notice no-one had appeared for the petitioner therefore, this court had proceeded with the matter and thereafter the counsel for respondent had appeared, hence on 7/11/2012 though petition was admitted for hearing but in the interest of justice one more opportunity was given to respondent to show the bona-fide before directing advertisement of the petition. Hence parties have been heard at length at this stage. 5/ This winding up petition has been filed by the petitioner with the plea that petitioner had sold the respondent company reclaimed rubber and had raised the bills dated 30/10/2009, 26/11/2009 and 9/12/2009 amounting to Rs. 6,14,954/- against which the respondent had issued cheques dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made inspite of confirming the balance therefore, it is a clear case where the respondent is unable to pay the debt and a case for winding up is made out. 8/ Learned counsel for the proposed intervenor MPFC has also submitted that MPFC is the sole secured creditor and loan of Rs. 177.4 lakhs was advanced to respondent company, but no repayment has been made by respondent therefore, respondent company should be wound up. 9/ Learned counsel for respondent company submits that petition has not been filed in the prescribed form. The affidavit is not by the competent person as required by Rule 21 of Company (Court) Rules and there was no approval of the board of directors and that after dishonour of cheques no case under section 138 of Neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was dispute relating to quality of goods but no reliable material in this regard has been produced and at the subsequent stage in the additional reply an attempt has been made to change the stand. 15/ That apart the intervention application filed by MPFC, the sole secured creditor, also reveals that the sole secured creditor had advanced sum of Rs. 177.49 lakhs to respondent compnay and said amount is outstanding and due and has not been repaid which clearly reflects that substrata of the company has been eroded. 16/ Undisputedly the industry run by the company is not functional and it has already been closed down. 17/ Nothing has been pointed out by learned counsel for respondent to show that the company is in a position to repay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. That apart the petitioner has subsequently filed the company petition duly signed by the Vice President and Company Secretary in the prescribed form. 22/ Counsel for respondent placing reliance upon judgment of the Supreme court in the matter of M/s Madhusudan Gordhandas & Co. Vs. Madhu Woolen Industries Pvt. Ltd. reported in 1971 (3) SCC 632 has submitted that wishes of secured creditor is relevant only if he opposes the company petition. But in the present case from on the basis of the plea raised in the company petition itself a case for winding up has been made out and the details placed on record by the secured creditor have established that respondent company is unable to pay the debts, therefore, the winding up of responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said order is confirmed. IA No. 4294/18 filed by respondent company is rejected. 26/ The aforesaid fact also indicates that a case of winding up of respondent company is made out. Accordingly, it is directed that :- (1) Let the petition be advertised by the OL in accordance with the Rules. (2) Considering the circumstances, it is found that the petition has been presented on the ground that is just and equitable for passing an appropriate order of winding up. Accordingly I order winding up of the respondent-Company in accordance with the provisions of the Act read with the Company Court Rules, 1949. (3) Accordingly and with a view to enable this Court to pass a final winding up order as contemplated under Rule 282 of the Rules, Off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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