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Judgment
The Court : From the affidavit of service filed on behalf of the petitioner, it appears that a copy of this application has been served upon the Advocate-
on-Record representing the company in this winding up application under the Companies Act,1956. Let, the affidavit of service filed by the petitioner
be kept on record. Since, none appears for the company even in the second call, the application is taken up for hearing in the absence of the company.
It is the case of the petitioner in this application that by an order dated August 17, 2015 a learned Single Judge of this Court admitted this winding-up
application filed by itself against the company. By the said order the company was, however, granted an opportunity to pay the principal sum of
Rs.3,87,49,003/(Rupees Three Crore Eighty Seven Lakh Forty Nine Thousand and Three only) together with interest at the rate of 8 per cent, per
annum from February 11, 2014 and costs assessed at 2,000 GMs within a fortnight, failing which the winding-up application would be advertised in the
newspapers.
The company carried the said order dated August 17, 2015 in appeal, being ACO No.146 of 2015, APOT No.419 of 2015, CP No.822/2014, before
the Division Bench of this Court. By an order dated September 4, 2015 the Division Bench of this Court directed the company to deposit Rs.
50,00,000/(Rupees Fifty Lac only) within September 11, 2015 as a condition for obtaining stay of operation of the order dated August 17, 2015 passed
by the learned Single Judge.
The company, however, did not deposit the said amount as directed by the Division Bench and the petitioner caused advertisement of the winding-up
application in newspapers. Thereafter, the company filed an application, CA 133 of 2017 before a learned Single Judge of this Court praying for, inter
alia, stay of further proceedings of the winding-up application and the order dated August 17, 2015. By a consent order dated April 17, 2017 a learned
Single Judge of this Court disposed of the said application CA 133 of 2017.
In terms of the said consent order dated August 17, 2017 the company was to pay Rs.3,77,88,569/- (Rupees Three Crore Seventy Seven Lakh Eighty
Eight Thousand Five Hundred Sixty Nine Only) to the petitioner. The said consent order further provided that out of the said Rs.7,88,562/- (Rupees
Seven Lakh Eighty Eight Thousand Five Hundred Sixty Two Only) the company would pay Rs.3,77,88,569/- (Rupees Three Crore Seventy Seven
Lakh Eighty Eight Thousand Five Hundred Sixty Nine Only) to the petitioner at the time of passing of the said order and the balance sum of
Rs.3,70,00,000/- (Rupees Three Crore Seventy Lakh Only) would be payable by the company to the petitioner in monthly instalments of
Rs.12,00,000/- (Rupees Twelve Lakh Only) each, starting on and from May 2, 2017 and, thereafter, on or before 7th day of each succeeding month.
As per the said consent order, subject to payment of the monthly instalments by the company to the petitioner, the winding-up proceeding would
remain adjourned sine die but in case of default in payment of two consecutive instalments, the petitioner would be entitled to proceed with this
winding-up application as before.
According to the petitioner, in terms of the said consent order dated April 17, 2017, the company paid Rs.7,88,562/- (Rupees Seven Lakh Eighty Eight
Thousand Five Hundred Sixty Two Only) and the monthly instalments of Rs.12,00,000/- (Rupees Twelve Lakh Only) each, up to the month of
November 2017 and, thereafter, it failed to pay any of the balance monthly instalments. It was vehemently submitted that since the company has failed
to pay the balance monthly instalments from the month of December 2017 amounting to Rs.2,86,00,000/- (Rupees Two Crore Eighty Six Lakh Only)
in terms of the said consent order dated April 17, 2017 the petitioner is entitled not only to proceed with the winding-up application but also to obtain
the final order of winding-up of the company.
As mentioned earlier in spite of service of this application, none appears on behalf of the company to dispute the averments made by the petitioner in
this application. In view of the above facts urged by the petitioner, which remain uncontroverted, it is evident that the company is involved
circumstances and it is unable to pay its debt under Section 433(e) of the Companies Act,1956. Thus, this Court has no option but to allow this winding
up application. Accordingly, there shall be an order in terms of prayers (a) to (g) of the Judge’s Summons.
The Official Liquidator is directed to forthwith take possession of all the assets and properties of the company lying at its registered office its factories,
together with its business and affairs. Urgent certified website copies of this order, if applied for, be made available to the parties subject to
compliance with all requisite formalities.