Raj Kumar and Brother vs Organic Chem Oils Ltd.

Swatanter Kumar, J.—The court being satisfied that the company was unable to pay its debt due, vide order dated November 24, 1997, this winding up petition was admitted and notice was directed to be published in the Indian Express, Punjab Government Gazette and Punjabi Tribune at least fourteen days prior to the next date of hearing which was January 15, 1998.

In compliance with this order of the court, the petitioner has filed an affidavit of service annexing therein the copy of the Punjab Gazette dated December 26, 1997, publication of notices in both the aforestated papers. As such the service is complete and nobody has appeared to oppose this petition even at this stage.

The petition under sections 433(e) and (f) read with section 434(1) and section 439 of the Companies Act, 1956, was filed praying that the respondent-company, Organic Chem Oils Limited, be ordered to be wound up for non-payment of its due debts. In pursuance of the orders for purchase of soap stone powder, the petitioner supplied the said material of the value of Rs. 4,15,624. During the period of May 30, 1996, to August 1, 1996, the material was supplied through invoices. Copies of 16 invoices along with receipt of the material against declaration has been placed on record. The petitioner has served a notice u/s 434(1)(a) of the Companies Act, by registered acknowledgment due. The notice was addressed to the respondent-company at its registered office. The said notice was delivered back to the petitioner with the remarks of the postal authorities that notice has been "refused". The postal receipts of this notice is exhibit P-3 to the petition and notice was despatched on August 27, 1997, to the respondent-company. Once a notice is refused the respondent-company would be deemed to be aware of the contents thereof. The court would draw a presumption of service against the respondent-company and specially in view of the fact that none appeared even before this court before the admission of the petition and even now thereafter.

It needs to be noticed here that even the notice issued before admission of this petition to the respondent-company at its registered office was returned with the remarks "refused". In these circumstances, the case of the petitioner-company remains unrebutted and the facts averred in the petition which are supported by an affidavit should be deemed to be correct. There is definite evidence on record that the amount is law fully due to the petitioner and the respondent-company in spite of notice has intentionally failed to pay its liability. The company is unable to pay the debts due from the company.

For the reasons aforestated, this petition needs to be allowed. Consequently, this petition is allowed with costs which are assessed at Rs. 2,000. The respondent-company, Organic Chem Oils Ltd., is ordered to be wound up, u/s 433(e) read with section 434(1) and section 439 of the Companies Act. The official liquidator attached to this court is hereby appointed official liquidator of the respondent-company. He is directed to take charge and possession of the assets, properties and records of the company forthwith.

The official liquidator is directed to publish notice of the order of winding up of the company in two newspapers, whichever have wide circulation in the area under the jurisdiction of this court, in accordance with rules.

The petition is accordingly disposed of.