- (1.) THE present bunch of four petitions, i.e., CP No.48 of 2011, CP No.49 of 2011, CP No.50 of 2011 and CP No.134 of 2012 have been brought by unsecured creditors under Sections 433, 434 and 439 of the Companies Act, 1956 for winding up the respondent company for reasons of its inability to pay the debts to the four different petitioners. The facts are taken from CP No.134 of 2012 for convenience.
(2.) THE respondent company is a Public Limited Company registered at Ludhiana and falls within the jurisdiction of the Company Court. In each of the cases, the petitioning creditors have served statutory notices under Section 433 read with Section 434 of the Companies Act, 1956 at the registered office of the respondent company. The respondent company is engaged in the business of manufacture of edible oils and allied products at its facility in Ludhiana. The petitioners during the course of business dealings with the respondent company, the products of which are known and sold in the market under the brand name KRISH, some of whom are C&F agents of the respondent company have had let out their godowns on rent to the respondent company as per the agreements drawn apart from other interfacing business dealings. To obtain C&F agencies, the petitioners have advanced security deposits to the respondent company in different amounts through different cheques. There was failure on the part of the respondent company in making regular supplies of products and in CP No.134 of 2012, for example, the petitioner therein had terminated the agreement executed between the parties vide notice dated 7th November, 2009. After receipt of notice, the respondent company instructed the petitioners to transfer the unsold stocks to their sale depots at Pilukhwa, District Ghaziabad (U.P.) which was complied with. The request for refund of the security amount paid to the respondent company has not been returned. It is stated that instead of repaying the outstanding dues, the respondent company presented the cheques given by the petitioner towards security of stocks to cause undue loss to the petitioner. The parleys between the parties for refund of the security amount failed. As per the account books of the petitioner company, the respondents are liable to pay a sum of Rs. 39,55,277/ - as on 30.9.2012. This amount remained outstanding and the respondents are also liable to pay future interest till realization of the amount owed to the petitioner. The legal notice/ statutory notice dated 10.10.2012 was posted/sent at the registered office of the respondent but was returned back with the report of the postman as "U/E" dated 12.10.2012. The notice sent on the third address of the respondent was received back with the report "left without address". It is pleaded that there has been due service of notice on the respondents. The statutory period of 21 days has long run out. The respondent company has not made any effort to discharge its debt. In these circumstances, the winding up petition has been filed which is one of 4 winding up petitions against the respondent in this Court. The amounts claimed are reflected in the account books of the petitioner firm. The C&F agreement is placed on record as P -1. The exchange of correspondence between the parties has been placed on record.
(3.) WHEN the agency was terminated by the petitioner, the respondents had called upon the petitioner firm to submit supporting documents of office expenses and stock statements which request was met and relevant materials were duly forwarded to the respondents vide letter of the petitioner dated 28.1.2010. The calculation sheets of the outstanding dues were attached as Annexure I to the registered letter/UPC/speed post dated 8/10.4.2010 (P -5). This is where the matter stood when the winding up petition was brought and entertained. Notice to the respondents to show cause as to why the petition should not be admitted was issued on 19.12.2012 returnable 21.3.2013. The affidavit of service was filed in Court on 21.3.2013. Further documents being Annexures P -7 to P -13 were permitted to be taken on record subject to just exceptions by allowing CA No.290 of 2013 in CP No.48 of 2011 supra. On 19.12.2013, this Court issued an injunction order in all the four cases by a common order passed in CP No.48 to 50 of 2011 restraining the respondent company from alienating, transferring and/or creating any encumbrance on the moveable and immoveable assets in any manner. The petitioner was given liberty to give wide publicity to the order. It was so done. A statement was made before this Court on 19.12.2012 that the respondent is a running business and has assets worth about Rs. 28 crores. It was further stated that the respondent company is in the habit of dishonouring its promises made through cheques which bounced and is facing several trials under Section 138 of the Negotiable Instruments Act, 1881. In all the cases, affidavits of service have been duly filed. Despite the pendency of these cases since 2011 the respondents, including the impleaded respondent in CP No.48 of 2011, i.e., M/s Lotus Refineries Private Limited, have not come forward to contest the claim despite due service. The respondent has not cared to enter appearance. Therefore, the averments made in these cases with respect to debt and of the inability to pay the same are accepted on the principle of non -traverse. In these circumstances, the debts are not denied and are therefore taken as admitted debts. The respondents' nonappearance fortifies the thinking of this Court that the respondent company is unable to pay its debts and it would be just and equitable to admit this petition. Ordered accordingly. Petition to stand admitted for further proceedings.;