OMCE JORDAN Vs. SUDARSHAN OVERSEAS LTD.

JUDGEMENT

(1.) THE company petition is filed under section 237(b)(i) of the Companies Act, 1956, praying for a direction against the Central Government to appoint one or more competent persons as inspectors to investigate the affairs of M/s. Sudarshan Overseas Ltd., which is the respondent. The petitioner -company is duly registered with the Hashemite Kingdom of Jordan, Ministry of Industry and Trade, Companies Control Department, involved in the manufacturing of conical tapered drums, suitable for containing foodstuff, products in aseptic bags.

(2.) THE respondent -company was incorporated with the Registrar of Companies, New Delhi under the Companies Act. Originally, the registered office of the respondent -company was in New Delhi which was subsequently transferred to Chennai on December 2, 2008, as per the order of the Company Law Board dated December 5, 2008, with effect from December 11, 2008. The main object of the respondent -company is dealing in foodstuffs, processed food products and other similar trade and business activities. It is stated that the respondent -company is indebted to the petitioner -company in an amount of Rs. 6,05,86,946.95 calculated at the exchange rate of Rs. 48.24 per US$ along with interest at the rate of 24 per cent. per annum from July 8, 2008, with interest amounts to Rs. 1,57,52,605.57 and entitled for further interest. The petitioner has filed C.P. No. 256 of 2009 for winding up of the respondent -company under section 433 of the Companies Act after issuing statutory notice. Pending the company petition, in C.A. No. 1529 of 2009, by an order dated November 6, 2009, this court granted an order of injunction against the respondent -company from selling, transferring, mortgaging, alienating parting with possession or otherwise, charging or encumbering of any assets of the respondent -company. It is stated that subsequent orders have been passed giving directions to the respondent -company to produce profit and loss account and balance sheet, etc. It is stated that by way of counter affidavit filed in the company petition in C.P. No. 256 of 2009, as per the direction of this court on January 18, 2010, the respondent -company has given the particulars regarding the profit and loss account for the years ending March 31, 2006, March 31, 2007, March 31, 2008 and March 31, 2009.

(3.) IN the counter affidavit filed by the respondent -company, the respondent -company has stated that the petitioner has no locus standi on the basis that it is neither a juristic person nor a legal entity and the name of the petitioner given in the cause title is only trade name owned by the company called Jordanian Italian Drum Manufacturing Ltd., and in the absence of any record to show that OMCE Jordan is the company incorporated under the Companies Law of Jordan, the petition is not maintainable. It is stated that the above petition has been filed by the petitioner not with clean hands. It is stated that the petitioner has earlier filed a summary suit in C.S. (OS) No. 1719 of 2009 before the Delhi High Court in which the respondent had filed a leave petition to defend their case and also made counter claim of Rs. 1.80 crores. It is also stated that while such suit for recovery was pending, suppressing the same, the petitioner has filed C.P. No. 256 of 2009 for winding up of the respondent -company on the said disputed transaction. It is stated that in C.P. No. 256 of 2009 arguments were heard. While the orders were yet to be passed, the present petition has been filed to direct the Central Government to appoint one or more competent persons as inspectors to investigate into the affairs of the respondent -company and therefore, according to the respondent -company, the said petition is not maintainable. It is stated that inasmuch as the claim of the petitioner as a creditor has not yet been established and since the petitioner itself has approached the Delhi High Court in which there is a counter claim made on behalf of the respondent -company, according to the respondent both the petitions for winding up of the company as well as the petition for investigation are not maintainable. While denying the allegation of mismanagement of the respondent -company, it is stated that mere opinion of an auditor is not sufficient for investigation and the auditor's opinion gives only imaginary instances of mismanagement.