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TMI Blog2020 (3) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 433 r/w. 434 of the Companies Act, 1956, the petitioner has prayed as under: 13(A) Your Lordships be pleased to pass an appropriate order to wind up Umiya Ceramic Pvt. Ltd. under the provisions of the Companies Act,1956; (B) Your Lordships be pleased to appoint Official Liquidator attached to this Hon'ble Court be appointed as the Provisional Official Liquidator of the Company with all powers under the provisions of the Companies Act,1956; (C) The Official Liquidator attached to this Hon'ble Court be appointed Liquidator of the Company to take over all assets and books of accounts and the affairs of the Company under the provisions of the Companies Act,1956; (D) Pending the hearing and final disposal of this petition, the Official Liquidator attached to this Hon'ble Court or any other person be appointed as Provisional Liquidator of the Company for taking the inventory of the assets and properties of the Company and to exercise all powers under the Companies Act,1956. (E) Your Lordships be pleased to restrain the respondent company by itself, its servants, and agents be restrained by an order and injunction of this Hon'ble Court fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinbelow. 2. The present respondent company is paying above said amounts by following 9 cheques drawn on State Bank of India, Para Bazar Branch of Morbi as follows that: i Cheque No.903111 dated 1.4.2018 10,00,000 ii Cheque No.903112 dated 1.5.2018 10,00,000 iii Cheque No.903113 dated 1.6.2018 10,00,000 iv Cheque No.903114 dated 1.7.2018 10,00,000 v Cheque No.903115 dated 1.8.2018 10,00,000 vi Cheque No.903116 dated 1.9.2018 10,00,000 vii Cheque No.903117 dated 1.10.2018 10,00,000 viii Cheque Nos. 903119 and 903120 dated 1.1.2019 and 1.2.2019 20,00,000 are being given to the petitioner herein towards full and final settlement of dues of the petitioner company. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared, Company Application No.12 of 2019 came to be filed for revival of the aforesaid Company Petition, which came to be allowed by coordinate bench of this Court (Coram: Hon'ble Ms Justice Sonia Gokani) vide order dated 11/12/2019, which reads as under: 1. The applicant is the original petitioner and the opponent is the original respondent of the Company Petition No.32 of 2015. The Company Petition No.32 of 2015 was admitted vide order dated 28.08.2017 and the same came to be disposed on 21.03.2018. 2. An undertaking was signed by the Managing Director of the respondent no.1 Company, Shri Rameshbhai Tapubhai Bhorania on dated 15.03.2018 upon the deposits of the cheques which were delivered to the applicant. Pursuant to the said undertaking, the cheques dated 01.04.2018, 01.05.2018, 01.06.2018, 01.07.2018 and 01.08.2018 were dishonoured for the reason fund insufficient . This has aggrieved the petitioner. 3. The petitioner has urged that the respondent no.3 who was the Managing Director of respondent no.1 Company though had agreed to abide by the undertaking given to this Court, has committed serious breach. Vide order dated 21.03.2018 passed in Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not permit the honouring of the cheques. It is further the say of the respondent that company is facing liquidity crunch. It still honestly intends to pay the amount. It has urged to accept the unconditional apology and further has urged that it is a discretionary power of the Court and the respondent company since is trying to revive, the Court may not direct the winding up. 8. This Court notices that the Company Petition No. 32 of 2015 was filed under Section 433 read with Section 434 of the Companies Act, 1956 seeking winding up of the Umia Ceramic Private Limited on the ground that it is unable to pay its debt to the petitioner. 9. The parties during the pendency of the petition after it was admitted on 28.08.2017, reached at a settlement. The respondent no.1 had agreed to pay ₹ 70,00,000/being the original amount with ₹ 20,00,000/towards interest against the outstanding dues of the petitioner. Undertaking was also tendered on 15.03.2018. Thereafter the Court passed the following order on 21.03.2018 in Company Petition No.32 of 2015: 4. 5. 6. 7. 8. 10. After the said order, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment and unconditional apology of respondent no.3 both dated 17.07.2019. 4. It appears that there is no compliance of the directions of the Court and today when the matter was called out, learned advocate Mr.Jasani is not present. 5. This Court has heard learned advocate Mr.C.R.Abhichandani who was taken the Court through the record to point out that no compliance has been made till the date and presently, there is a board of another company at the place where the company was operating, running the very same activities without any intimation to the Court. Along with the compliance of the directions of this Court as stated in the order dated 05.07.2019, the respondent no.3 shall also clarify this aspect without fail. The respondent shall also reveal before this Court the assets of the company and whether any transaction has been effected in the interregnum. 6. If the respondent does not bother to bring these details on record and choose not to appear, consequential preventive measures shall require appropriate orders to be passed by this Court on the next date of hearing which shall be 21.08.2019. To be listed in the first 15 matters. 2. Today, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court on the day of hearing on 17/9/2019 and it is undertaken that the said cheques would be honoured on due dates. I the Respondent no.3 has presented above 5 cheques with all sincerity and I understand that dishonour of cheques is breach of undertaking and is punishable by this Hon ble Court. 3. As five cheques are already given in the name of the Registrar, Gujarat High Court and the sum of ₹ 15,00,000/( Rupees Fifteen Lakhs) is already paid in the bank account of the applicant Asian Granito India Limited, as per the mutual settlement, the five cheques each of ₹ 15,00,000/( Rupees Fifteen Lakhs) have been given, in the name of the Registrar, High Court of Gujarat. On presentation of the same before the concerned bank on respective date, any breach, if is found to have been committed, resulting into the dishonour of any one of the cheques, the applicant s request of revival of company petition for winding up shall be permitted to be revived. 4. Present application is seeking the revival of the Company Petition No. 32 of 2015 which in wake of this compromise is not being acceded to. However, in the event of any one default as mentioned hereinabove, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 12. All the three cheques are amounting to ₹ 15,00,000/each, have been dishonoured on 06.12.2019. In between, the Court also was ensured to once again present the same and there also, on the very ground of insufficiency of fund they could not sail through. 13. As a last resort, learned advocate Mr. Jasani, as an officer of the Court has urged that the respondent be given an opportunity for the last time. The respondent is selling off his agricultural land and is sure to get the requisite amount. He has sought time up to 09.01.2020 to pay the entire amount of ₹ 75,00,000/. He has urged that last opportunity be granted to the respondent. No further time shall be sought. The entire amount shall be paid on or before the schedule date of 09.01.2020. 14. This Court already on earlier occasion had directed the respondent to ensure the due adherence to the law. There appears to be negligence on the part of the respondent. This also has given rise to the ingredient of Section 138 of the Negotiable Instruments Act for which the Registry can initiate actions against the respondent. 15. However, as a last chance, the discretionary powers are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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