Dr. B.S. Ravi vs Aldea Electronics (P.) Ltd.

H.N. Nagamohan Das, J.—Respondent is a Private Limited Company registered under the Companies Act, 1956. In the year 2001 Respondent-company was facing acute financial trouble on account of withdrawal of working capital by their Banker - State Bank of Mysore. At that time, Respondent-company approached the Petitioner for funds with an offer to repay the same with interest at 18 per cent p.a. Accordingly, the Petitioner advanced a sum of Rs. 8,64,000 to the Respondent-company. Up to 31-3-2005, the Respondent-company made certain payments. In the month of March 2005 the Respondent-company expressed its difficulty in payment of interest at 18 per cent and requested the Petitioner to reduce the rate of interest. Accordingly, with effect from 1-4-2005 by consent of the parties the rate of interest was reduced from 18 per cent to 15 per cent p.a. Thereafter, the Respondent-company failed to pay the balance of principal and interest. On 18-5-2006 as per Annexure-B, Petitioner issued notice calling upon the Respondent-company to repay the amounts due by them failing which to take appropriate legal action. Thereafter, the Respondent-company made certain payment and requested to adjust the same towards principal and not towards interest. Accordingly, the repayment made by the Respondent-company came to be adjusted towards principal. Even thereafter, the Respondent-company was found due a sum of Rs. 1,00,000 towards principal as on 31-3-2005. Despite repeated requests, demands and statutory notice dated 30-9-2005 as per Annexure-D, the Respondent-company failed to pay the amounts due to the Petitioner. Hence, this petition u/s 433 for winding up of the Respondent-company.

After service of notice, Respondent-company entered appearance and filed statement of objections inter alia admitting the transaction between the parties. Respondent-company contends that there is a dispute between the parties in the matter of adjustment of payments towards principal and interest and the same is required to be resolved in a competent Civil Court. On this ground the Respondent-company opposed the petition.

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

Respondent-company in their letter dated 15-6-2009 as per Annexure-C admitted that as per their books of account as on 31-3-2009 they are liable to pay only a sum of Rs. 1,00,000. This letter dated 15-6-2009 is not disputed by the Respondent-company. This admitted amount due by the Respondent-company is not paid by them. For non-payment of the admitted dues there is no defense/explanation offered by the Respondent-company. In the absence of any such defense by the Respondent-company, there is no impediment for this Court to allow the petition.

The contention of Respondent-company that there is dispute between the parties with regard to the adjustment of the payments made by them is not supported by any evidence on record. On the other hand, the Petitioner in the petition specifically stated that the rate of interest was reduced by the consent of the parties and payments are adjusted towards principal and as on 31-3-2005 a sum of Rs. 1,00,000 was outstanding towards principal. Therefore, the defense taken by the Respondent-company is vague and the same is a moonshine defense.

Pursuant to the order of this Court, advertisement was taken in English daily ''The Hindu'' in its edition dated 5-5-2010 fixing the date of hearing as 2-6-2010. Pursuant to the advertisement nobody came forward either to support or oppose the winding up order. In the circumstances, the following order:

(i) Petition is hereby allowed.

(ii) Respondent-company is ordered to be wound up.

(iii) Petitioner is directed to deposit a sum of Rs. 25,000 with the Official Liquidator to meet the initial expenses of the winding up proceedings.

(iv) Petitioner is directed to serve a copy of this order on the Registrar of Companies within 30 days.

(v) Petitioner is further directed to take out advertisement of this order in English daily '' The Hindu'' within 15 days from the date receipt of copy of this order.