Sudhesh Chemicals P. Ltd. vs A.D. Alum P. Ltd.

N.V. Anjaria, J.—The petitioner M/s. Sudhesh Chemicals P. Ltd., has filed the present petition under sections 433 and 434 of the Companies Act, 1956. It has prayed for winding up of the respondent-A.D. Alum P. Ltd., on the ground that it is unable to pay its debt due to the petitioner. It was the case of the petitioner that it was engaged in the business of chemicals. The respondent-company purchased from the petitioner Alumina Hydrade-AH-10 under two Invoice Nos. 433 and 434, dated July 11, 2007, worth Rs. 1,74,248 and Rs. 1,84,503 respectively. Against Invoice No. 434 no payment was made and the petitioner issued debit note dated September 7, 2007, for claiming interest of Rs. 13,281 and further debit note was also issued towards the bank charges of Rs. 800 which made total unpaid Rs. 1,92,844. It was the case that against the said outstanding dues, the respondent-company issued a cheque for Rs. 20,000 which was honoured; however the other four cheques bearing No. 01084 dated May 12, 2009; cheque Nos. 010835, 010842 and 010843 all dated May 15, 2009, given by the respondent were dishonoured on being deposited in the bank with that balance was insufficient.

Since the respondent did not pay the said dues despite dishonouring of the cheques as above, for which the respondent-company was also subjected to proceedings of complaint under section 138 of the Negotiable Instruments Act, 1881, also the petitioner issued statutory notice dated February 27, 2012, under sections 433 and 434 of the Companies Act. The registered A.D. Envelope containing the notice returned with the endorsement that the addressee had left, even though the address mentioned was the address of the registered office.

On the basis of search of the records of the respondent-company with the Registrar of Companies, Gujarat, Ahmedabad and on the basis of the last available balance-sheet of the year ended on March 31, 2011, of the respondent-company, the petitioner stated that the respondent is shown to be running in loss to the tune of Rs. 2,79,331 in the said year with accumulated loss being Rs. 12,65,306 and further that it had unsecured loan for Rs. 21,15,731. The petitioner contended on the basis of all the above facts that the respondent has failed to pay the debt due to it and has lost its sub-stratum.

By order dated October 7, 2013, this court admitted the petition, however deferred the publication of notice of admission in order to enable the respondent to appear and defend. The last paragraph of the said order reads as under:

"13. In view of the fact that the respondent has yet not entered appearance, at this stage, the request for appointment of the official liquidator and request for permission to publish the notice of admission is deferred and the petitioner is directed to serve copy of this order to the respondent by way of direct service as well as by registered speed post A.D. If the petitioner places on record the acknowledgment of service either through direct service or by registered post A.D. on or before October 22, 2013, then appropriate orders will be passed on October 23, 2013."

By way of interim relief the court directed that the respondent-company shall not transfer or alienate or encumber any property of the company directly or indirectly and in any manner whatsoever.

The petitioner filed affidavit dated July 12, 2013, that when the direct service was attempted to be served at the place, wife of the director of the company who was present, refused to accept the notice. The director--Laljibhai Thakkar was not found. Another affidavit was filed by the petitioner on the basis of inquiry from the office of the Registrar of Companies that the registered address of the respondent was changed with effect from December 29, 2012, after issuance of notice on July 26, 2012. Despite the service of notice as permitted above, the respondent did not appear nor cause any appearance. Therefore this court directed publication of notice in two newspapers, Divya Bhaskar in English language and Sandesh in Gujarat'' language in their Vadodara edition. The notices were published on May 1, 2014, in the said newspapers and affidavit of publication came to be filed by the petitioner on July 3, 2014 and was placed on record along with the copies of the newspaper advertisement.

Heard the learned advocate Mr. Chetan Pandya for the petitioner. None has appeared for the respondent-company despite publication of notice.

From the above facts what emerge is, (i) the respondent-company failed to discharge its debt due to the petitioner of Rs. 1,72,000; (ii) the cheques issued towards the said dues were dishonoured and thereafter also no payment was made; (iii) the record with the Registrar of Companies, inter alia, manifested that the company was running in losses and there was huge accumulated loss which could be gathered from the last available balance-sheet of the respondent-company; (iv) the company did not reply to the statutory notice. In the present petition of winding up, the respondent-company did not appear even after the notice came to be published in the newspaper as above; (v) no affidavit-in-reply was filed in response to the case of the petitioner claiming its dues.

In the above circumstances, it is irresistible conclusion that the respondent-company does not have any substantial dispute and it has no defence whatsoever in respect of the claim of the petitioner for its dues. A situation is clearly obtained where the company is found unable to pay its debt and has lost its substratum. Accordingly the respondent-company M/s. A.D. Alum P. Ltd., is liable to be wound up under the provisions of the Companies Act, 1956. The present petition therefore deserves to be allowed and accordingly the same is allowed.

The respondent-company-M/s. A.D. Alum P. Ltd., is hereby ordered to be wound up under the provisions of sections 433, 434 and 439 of the Companies Act, 1956. The official liquidator attached to this court is hereby appointed as the official liquidator for the said company-M/s. A.D. Alum P. Ltd. The official liquidator is directed to take possession of all the assets of the company, both movable and immovable properties. The official liquidator is further directed to take within his custody and control all the accounts, books and other relevant records and the entire affairs of the company. The official liquidator shall carry out necessary inventory and prepare Panchnama in that regard and shall file an appropriate report before this court within a period of three months. If required, the official liquidator is free to take service of official valuer for the purpose of preparation of inventory report, possession notes and for getting other details recorded in relation to the affairs of the company. There shall be no costs.