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Judgment
On February 14, 2013 a learned Single Judge of this Court passed an order admitting the winding up application of the petitioner and recorded that as agreed by the parties, the company would pay the principal sum Rs. 1,56,217.90 together with interest, at the rate of 3 per cent, per annum from June 1, 2012 reckoned on reducing balance basis, in 10 equal monthly instalments beginning from March 15, 2013 and payable by the 15th day of the nine succeeding months in full and final satisfaction of the petitioner''s claim. By the said order it was directed in the event the entire payment is made as agreed between the parties the winding up petition will remain permanently stayed, but in default the petition will be advertised in an English newspaper and a Bengali newspaper.
Admittedly, the company did not make any payment to the petitioner as per the agreed terms recorded in the said order dated February 14, 2013 and, consequently, the petitioner caused advertisement of the winding up application in the newspapers. Thereafter, on July 25, 2017 another learned Single Judge of this Court granted a chance to the company to make part payment of its dues to the petitioning creditor [and to pass an appropriate order for payment of the balance amount by instalment].
According to the company, after passing of the said order dated July 25, 2017 till date it is paid Rs. 19,850 to the petitioning creditor and it is ready to deposit the balance amount to the petitioning creditor by way of suitable instalments.
The petitioning creditor, however, raised serious objection to the prayer of the company and it was submitted that once the company failed to make payment of the entire outstanding dues of Rs. 1,56,217.90 as recorded in the order dated February 14, 2013, there is no scope for further modification of the said order dated February 14, 2013 or to allow the company to pay off the outstanding dues by way of further suitable instalment.
Having considered the materials on record I find that the order dated February 14, 2013 clearly directed that in the event of any failure on the part of the company to pay the agreed principal sum of Rs. 1,56,217.90 by 10 equal monthly instalments, the winding up application should be advertised in the newspapers and admittedly the petitioner has not paid any instalment in terms of the said order dated February 14, 2013 and the winding up application has been advertised in newspapers.
In any event, there is no application from the side of the company to make out a specific case as to how it intends to pay off the outstanding dues of the petitioning creditor amounting to Rs. 1,36,367.90. The conduct of the company lacks bona fide.
It is patently clear that the company is unable to pay its debts. The company is insolvent and it is only fit and proper that the company should be wound up.
There shall, therefore, be an order in terms of prayer (a) of the winding up application.
The Official Liquidator shall forthwith take possession of all the assets and properties, as well as the affairs of the business of the company.
All parties concerned including the Official Liquidator are to act on a certified website copy of this order on usual undertakings.