- (1.) By presenting this company petition under Sections 433, 434 and 439 of the Companies Act, 1956 (hereafter the Act), the petitioning creditor seeks an order for winding up of M/s. ARC Insulation & Insulators Private Limited (hereafter the company) under the provisions of the Act and a direction on the Official Liquidator to take possession of the assets, properties, books and accounts of the company. The claim is founded on the allegation that the company failed and neglected to pay to the petitioning creditor Rs.35,66,203.00 (Rs.1,19,826.00 on account of license fee and maintenance charges, Rs.26,96,319.00 on account of penalty and Rs.7,50,058.00 on account of interest @ 18% p.a. from July 7, 2010 to December 31, 2011) together with further interest @ 18% p.a. thereon till actual payment.
(2.) By an order dated April 12, 2012, Hon'ble Sanjib Banerjee, J. while recording that the company was not represented even at the second call and no affidavit-in-opposition had been filed, admitted the company petition. It was observed that if the company pays off Rs.28,16,145.00 together with interest thereon @ 8% p.a. from the date of the statutory notice till the date of payment within a fortnight from date, the company petition would remain permanently stayed; in default, the company petition would be advertised in two daily newspapers with the indication of enlistment thereof as per such order. The company petition, post-advertisement, came up for consideration on October 12, 2012 before His Lordship. The company was again not represented even at the second call. His Lordship perceived the company not to be interested in the matter and, accordingly, passed a direction for it to be wound up. The Official Liquidator was directed to take possession of all books, records, assets and documents of the company now in liquidation and to take charge of all its transactions. Liberty was granted to the petitioning creditor to advertise a gist of the order.
(3.) Immediately thereafter, the company applied for recall of the orders of admission and winding up (C.A. No. 749 of 2012) on the ground that it had not been served at either stage. His Lordship was prima facie not inclined to believe the stand of the company and, accordingly, passed on December 7, 2012 the following order: "Subject to the company depositing the entire amount as per the order of admission dated April 12, 2012, the official liquidator will not take any steps in the matter. There will be an unconditional stay of the order of winding-up till December 12, 2012. In default of the amount being deposited in the manner indicated by December 12, 2012, the official liquidator will proceed to take possession of the assets of the company (in liquidation). The deposit has to be made with the Registrar, Original Side who will invest the same by way of a fixed deposit in any nationalised bank and retain the same free from all lien and encumbrances and subject to any further order that may be passed in the application. Affidavit-inopposition be filed by December 14, 2012; reply thereto, if any, may be filed before the matter is taken up on December 18, 2012. Since the company was not represented earlier, once the deposit is made the company will be heard on the merits of the petitioning creditor's claim.";