M/s. HDFC Bank (P) Ltd. vs M/S Unex Cargo P. Ltd.

A.S. Bopanna

The petitioner is before this Court in this petition filed u/s 433(e) of the Companies Act praying that the respondent - Company be wound up as they are commercially not solvent and they are unable to pay their debts. The respondent, though served, is unrepresented. The petition was admitted by this Court on 23.1.2012 and the petitioner was permitted to take out notice in the newspaper. The admission of the petition has accordingly been notified. Despite the same, the respondent has not appeared before this Court to oppose the petition. No other person has also opposed the instant petition. Heard the learned counsel appearing for the petitioner and perused the petition papers.

The petitioner - Bank had sanctioned a loan of.10,00,000/- which was disbursed to the respondent on 31.1.2007. The application form relating to the same is at Annexure-E to the petition and the loan agreement is at Annexure-F. The respondent, according to the terms of the agreement, was required to re-pay the loan in 36 equated monthly installments of.36,150/- each. Though the respondent had paid certain installments, they had committed default and therefore, the interest on the said amount had also accrued. An on 10.12.2009, respondents were due in a sum of.6,28,853.46p. The petitioner -Bank, accordingly got issued the statutory notice as contemplated u/s 434 of the Companies Act on 10.12.2009, a copy of which is produced at Annexure-H to the petition. The statutory notice was served on the respondent - Company. Despite the lapse of time indicated therein, the amount demanded has neither been paid nor has the Company put forward any plausible defence.

As noticed in the instant petition, the respondent had not appeared and disputed the claim at the first instance. As such there is no change in the circumstances and the conduct of the respondent in not disputing the claim before this Court would strengthen the contention of the petitioner -- Bank that the respondent -Company is not commercially solvent and they are unable to pay their debts. Therefore, there is default to pay the amount, which is due to be paid to the petitioner - Bank. In that view of the matter, I am of the considered opinion that the respondent - Company is required to be wound up so as to enable the Official Liquidator to realize the amount from the assets of the respondent - Company. in the result, the petition is allowed. The respondent - Company is ordered to be wound up. The Official Liquidator attached to this Court shall take charge of the assets of the respondent - Company and proceed further in accordance with law. The petitioner herein shall deposit a sum of.35,000/- before the Official Liquidator as initial expenses. The passing of the winding up order shall also be advertised by the petitioner in the ''Hindu'' daily English newspaper.