Vijay Prakash Lodha vs Shree Pramukh Industries Pvt Ltd.

M. Chhaya, J.—The present petition has been preferred by the petitioner under Sections 433, 434 and 439 of the Companies Act, 1956 (hereinafter referred to as ''the Act'') for appropriate order of winding up of the respondent-Company- "Shree Pramukh Industries Pvt. Limited". The petitioner has prayed for the following reliefs:

a. That Your Honour be pleased to admit and allow the present petition.

b. That Your Honour be pleased to pass an order that the Respondent Company i.e. Shree Pramukh Industries Pvt. Ltd. Be wounded up under Section- 433, 434, 439 and other enabling sections of winding up a company.

c. That pending hearing and or final disposal of this petition, this Hon''ble Court be pleased to appoint an Official Liquidator attached to the Hon''ble High Court, directing to take the custody of all assets, liabilities, affairs, business vouchers, papers, files, account books, computers, computer floppies, CDs and all other properties of the respondent Company.

d. Pending hearing and or final disposal of the petition, this Hon''ble Court be pleased to direct the Official Liquidator attached to the Hon''ble High Court of Gujarat, be appointed as the Provisional Liquidator of the respondent Company with power to collect all assets, liabilities, affairs, business vouchers, papers, files, account books, computers, computer floppies, CDs and all other properties of the respondent Company.

e. Pending hearing and or final disposal of the petition, Your Honour be pleased to direct and pass the order restraining the respondent Company, its directors, managers, executors, agents, servants from alienating and or dealing with any of the property, assets of the respondent Company in any manner or incurring any expenses without leave of the Court.

f. Such other and further orders as this Hon''ble Court may deem just and expedient be passed in favour of the petitioner.

g. Cost of this petition be provided to the petitioner.

Heard Mr. J.D. Ajmera, learned counsel appearing for the petitioner and Mr. Dhaval D. Vyas, learned counsel for the respondent-Company.

It is averred in the petition that the respondent-Company through his Director viz. Mahendrabhai J. Shah, requested the petitioner for some finance in order to pay the dues of the ARCIL. Accordingly, at the request made by the respondent-Company, the petitioner advanced a sum of Rs. 10,00,000/- (Rupees Ten Lacs Only). It is also averred in the petition that as a businessman, the petitioner under the full trust, and promised that the respondent-Company was to repay the said amount within a period of one week or so advanced money. As averred in Paragraph No. 6 of the petition, it is not a matter of dispute that the petitioner had given Rs. 10,00,000/- (Rupees Ten lacs Only) and the same has been received by the respondent-Company. In fact, the communication at Annexure-A to this petition indicates that it is an admitted position that the petitioner has issued a cheque for an amount of Rs. 10,00,000/- in favour of the respondent-Company and the same been duly honoured by the banker of the petitioner and respondent-Company has realized the said amount. It further appears that as the amount of Rs. 10,00,000/-(Rupees Ten Lacs Only) was not returned back to the petitioner, several requests were made and ultimately the petitioner was compelled to issue statutory notice dated 16.01.2010 which has been duly received by the respondent-Company. It further appears from the record that the said notice has been duly received by the respondent-Company, but the respondent-Company has not bothered to return back the said amount of Rs. 10,00,000/- (Rupees Ten Lacs Only) to the petitioner. The petitioner personally as well as telephonically requested the respondent- Company to return the back amount, as the said amount is huge amount for the petitioner and the petitioner is also in need of the money. But for the reasons best known to the respondent-Company, the Director and other persons of the respondent-Company started to ignore calls of the petitioner and personally also the petitioner did not any proper reply.

Before considering the submissions made by the learned counsel for the parties, it may be noted that while admitting this petition, this Court (Coram: M. R. Shah, J.) by order dated 15.06.2010 had passed the following order:-

Present Company Petition has been preferred under sections 433, 434 and 439 of the Companies Act, 1956 for an appropriate order of winding up of the respondent Company contending inter-alia that a sum of Rs. 10 Lacs is due and payable by the respondent Company to the petitioner. It is submitted on behalf of the petitioner that despite the statutory notice, the said amount has not been paid. It is the case on behalf of the petitioner that the respondent Company is not in a position to pay its debt to the petitioner as well as to the others and its financial condition is also not sound.

The factum of inability of the respondent Company to pay the debt to the petitioner and others has been admitted by the learned advocate appearing on behalf of the respondent Company. There is no dispute that a sum of Rs. 10 Lacs is due and payable by the respondent, which the respondent has failed to pay and hence. ADMIT. The admission of the present petition be advertised in two local news papers namely (I) Indian Express", English Daily, Ahmedabad Edition and (ii) "Divya Bhaskar" Gujarati Daily, Ahmedabad Edition. Present petition is fixed for final hearing on 9/8/2010.

The respondent-Company has filed Additional Affidavit, wherein it is stated as under:-

That the respondent Company''s net worth was eroded and because of the said the respondent Company had filed reference before Board of Industrial and Financial reconstruction (BIFR). That during the pendency of the reference Secured Creditors had taken over land, building and machines of the respondent Company and because of the said even reference that was filed before BIFR was abated. In view of the fact that both the factories of the respondent Company was taken over by the Secured Creditors and thereby the respondent Company has not being doing any manufacturing business since 2003 i.e. after assets were taken over by the Secured Creditors

That for the kind perusal of this Hon''ble Court, I am hereby also annexing 24th and 25th Annual Report for the Financial Year ending on 31.03.2011 as well as for the Financial Year ending on 31.03.2012. Annexed hereto and marked as Annexure: A (colly) are the copies of the 24th and 25th Annual Report.

It further appears that the petitioner has also filed affidavit of compliance of the order dated 15.06.2010.

Mr. Ajmera, learned counsel for the petitioner states that looking to the affidavit of the respondent and considering the financial status of the respondent-Company, the respondent-Company is unable to pay its debts, and that the respondent-Company has lost its financial substratum. Considering the aforesaid facts and circumstances, it would be just and proper to direct that the respondent-Company ''Shree Pramukh Industries Pvt. Limited'' be wound up. Accordingly, the respondent-Company ''Shree Pramukh Industries Pvt. limited'' is hereby ordered to be wound up. The Official Liquidator attached to this Court is hereby appointed as Official Liquidator of the respondent-Company and the Official Liquidator is directed to take over possession of the entire assets of the respondent-Company i.e. movable, immovable as well as Bank Account etc. The Official Liquidator is further directed to do the needful for winding up of the respondent-Company as provided under the Act. The petition is allowed accordingly.