Bhuwalka and Sons (P.) Ltd. vs Astha Infrastructure Ltd.

H.N. Nagamohan Das, J.—These petitions are filed u/s 433(e) and (/) of the Companies Act, 1956 (''the Act'') for winding up of respondent-company. The respondent-company is common in all these petitions. Petitioners in these petitions are the creditors of the respondent-company.

The petitioner in Co. P. No. 161/2009 contends that the respondent-company approached them for supply of TMT Bars. Annexure E dated 19-11-2008 is the copy of quotation submitted by the petitioner-company to the respondent-company. The respondent-company by accepting the quotation at Annexure E placed purchase order with the petitioner-company as per Annexure F dated 19-11-2008. In terms of the purchase order at Annexure F the petitioner-company made certain supplies and the same is evidenced as per Annexure G series. Further the respondent-company as per their communication dated 20-11-2008 - Annexure H instructed the petitioner-company to make certain supplies to their sister company. In respect of the supplies made by the petitioner-company they raised invoices as per Annexure J. Despite receipt of the goods the respondent-company failed to make payment amounting to a sum of Rs. 17,68,500. Despite letter dated 4-12-2008 at Annexure K and legal notice dated 31-3-2009 at Annexure L the respondent-company has not made payments to the petitioner-company. Annexure N is the communication from the respondent-company admitting the liability and requesting for some time to make payment. Since the respondent-company failed to make payment, the petitioner-company is before this Court u/s 433 of the Act.

Despite service of notice the respondent-company remained unrepresented. This Court vide order dated 2-12-2009 held service of notice on respondent-company as sufficient.

The petitioner in Co. P. No. 23/2010 contends that pursuant to the order placed by the respondent-company as per Annexure A dated 18-7-2009 the petitioner-company sold and delivered 50.16 MT of 10 mm TMT bars and another consignment of 51.430 MT of 8 MM TMT bars. Annexures B, C, D, E, F and G are the invoices raised by the petitioner-company for a sum of Rs. 29,87,584. The respondent-company issued four cheques dated 31-7-2009 for Rs. 4,78,876, 1-8-2009 for Rs. 4,97,340, 2-8-2009 for Rs. 4,93,823 and 30-8-2009 for Rs. 15,17,545. On presentation all the four cheques came to dishonoured with bankers'' shara ''insufficient funds''. Despite repeated requests and also statutory notice dated 5-10-2009 as per Annexure K and another notice dated 18-12-2009 as per Annexure K the respondent-company failed to make the payment. Hence, the petitioner is before this Court.

After service notice the respondent-company entered appearance through their advocate and have not filed the statement of objections.

Petitioner in Co. P. No. 10/2010 contends that they sold and delivered 10.020 MT of TMT bars on 8-10-2008 valued at Rs. 4,32,463 as per the invoice at Annexure F and 10.040 MT of TMT bars valued at Rs. 4,33,326 as per Annexure G. Again on 9-10-2008 sold and delivered 15.160 MT of TMT Bars valued at Rs 6,49,576 as per the invoice at Annexure H. Again on 9-10-2008 the petitioner-company sold and delivered 14.820 MT of TMT bars valued at Rs. 6,35,007 as per invoice at Annexure J. The respondent-company towards discharge of liability issued a cheque dated 18-11-2008 for a sum of Rs. 15,15,365 and another cheque dated 27-11-2008 for a sum of Rs. 6,35,007. On presentation the said two cheques came to be returned with an endorsement as ''funds insufficient''. Despite repeated requests, demands and statutory notice as per Annexure V dated 22-12-2008 the respondent-company has not paid the amounts due to the petitioner-company. It is further seen that the respondent-company acknowledged their liability. Having no other alternative, the petitioner is before this Court.

This Court in Co. P. No. 161/2009 vide order dated 2-12-2009 admitted the petition and permitted the petitioner to take out advertisement. Accordingly advertisement was taken and the paper publication is filed before the Court. Further it is seen that Co. P. No. 23/2010 was admitted vide order dated 14-6-2010 and petitioner was permitted to take out advertisement. Further vide order dated 3-9-2010 this Court dispensed with paper publication since the same was published in Co. P. No. 161/ 2009. In Co. P. No. 10/2010 this Court vide order dated 10-12-2010 admitted the petition and dispensed with the advertisement.

Heard arguments on both the side and perused the entire petition papers.

As stated above, the petitioners are the creditors of respondent-company. The respondent-company has not filed any statement of objections disputing the claim made by the petitioners. It is also seen from the record that the respondent-company by their communication as stated above have admitted their liability. Even the cheques issued by the respondent-company in respect of some of the petitioners came to be dishonoured for want of sufficient funds. This material on record manifestly establishes the fact the respondent-company is unable to pay the debts due to the petitioners. Even after admitting these petitions and taking out advertisement the respondent-company had not taken any steps to discharge the liability. In the circumstances the following:

ORDER

(i) Petitions are hereby allowed.

(ii) The respondent-company is hereby ordered to be wound up.

(iii) The Official Liquidator is appointed as Liquidator of the respondent-company.

(iv) Petitioner-companies shall deposit a sum of Rs. 10,000 each with the Official Liquidator to meet the initial winding up expenses.

(v) Petitioner Companies to take out advertisement of this order in one edition of ''THE HINDU'' English Newspaper within fourteen days from the date of receipt of copy of this order.

(vi) Petitioner Companies to serve certified copy of this order with the Registrar of Companies within thirty days from the date of receipt of copy of this order. Ordered accordingly.