- (1.) BOTH the Company applications filed U/S 450 of Indian Companies Act, 1956 read with R. 106 of Companies (Court) Rules, 1959, seeking appointment of provisional liquidator of respondent-Co. (M/s Channel 99-Media Network (P) Ltd) were heard together at joint request and are being decided by present order.
(2.) TWO Co. Petitions (12/2010 & 14/2010) were filed U/s 433 & 434 of Co. Act seeking winding up of respondent-Co. After notices of both the company petitions were served, reply was filed by respondent-Company. However, taking note of material on record, an order came to be passed on 18/08/2011 and prima facie finding was recorded that respondent-Company was unable to pay its debts for a sum of Rs.55,74,305/- payable to M/s Hcl Info Systems Ltd(Co.Pet. No.14/2010) as on 23/03/2009 and Rs.55,18,896/- payable to M/s Tata Communications Ltd (Co.Pet. No.12/2010) as on 15/03/2010; and accordingly, both the company petitions were admitted for hearing and notices of winding up petition were published in daily news papers (Rajasthan Patrika (All Raj.) & Times of India (Delhi Edn). Instant applications were separately filed by petitioner-Cos., for appointment of provisional liquidator of respondent-Company. It is alleged in the company application that total sum which respondent-company is unable to pay, came across more than One Crore and that apart, respondent-Company has failed to file their audited balance sheet, Trading, Profit & Loss A/c to show its net asset value. There is no material placed on record that respondent-Company is still operating its business, However, averments have been made in the reply filed by respondent-Company to show that paid up share capital is of Rs.3.10 Crores ? in support thereof, a certificate of Chartered Accountant (Ann.R./1) was submitted; which in itself, is not sufficient rather indicates the period ending on 30/06/2008. The management & affairs of respondent-Company are conducted in a manner, that admittedly lacks probity, and are likely to dilute substratum of the Company, thereby irreversibly damaging the rights & interests of the creditors. This fact cannot be prima facie ruled out that in the facts of instant case, respondent company may alienate, sale, transfer or dispose of its assets & properties with a view to defeat the claims of creditors including applicants. It has also been alleged by the applicants who are creditors of respondent-Company that appropriate action if not taken, respondent company may be reduced to a shell company by the time, the OL takes charge of the Company to give effect to the winding up order. Counsel for applicants further submits that to prevent further deterioration in the financial position and to prevent respondent Company from assuring liabilities with respect to other unsuspecting third parties, it would be imperative that a provisional liquidator be immediately appointed. After the notices being served upon respondent-Co., reply to instant applications has been separately filed, which is completely vague and evasive and despite specific objection being raised, no material has been placed on record as to what is the present net asset value of the company and whether respondent company is operating its business; rather respondent company failed to submit its last audited balance sheet alongwith profit & loss Account. As taken note of all the facts (supra), while admitting both the winding up company petitions filed by respective applicants-Co., prima facie finding has been recorded that respondent-Company is unable to pay its debts which have crossed more than One Crore and even after admitting Company Petitions on 18/08/2011, no efforts have been made by respondent-Company to liquidate its debts. Under S.450 of the Company Act a distinction has been made between the stage of presentation of a petition for winding up and the stage when the petition is admitted and directed to be advertised. The stage of presentation of the petition is anterior to the stage of admission. Section 450(1) of Co. Act provides that the court has discretionary jurisdiction to appoint a provisional liquidator in an appropriate case at any stage after the petition for winding up is presented.
(3.) IN the instant case, order of admission has been passed in both the winding up petitions after assigning detailed reasons for arriving at prima facie conclusion of respondent-Company being unable to pay its debts and after admitting the company petitions, notices have been published in daily news papers as taken note of (supra) and even if order dt.18/08/2011 having been assailed in special appeal but that will not be enough for respondent-Company to raise objection for deferring the appointment of provisional liquidator. Be that as it may, taking note of over-all conspectus of material on record (supra), once respondent-Company having failed to place on record audited balance sheet and profit & loss account to show net asset value and further failed to establish that respondent-company is operating its business; in such situation, and after prima facie finding has been record that respondent-company is unable to pay its debts which has crossed more than One Crore and looking to the financial position thereof, it may further deteriorate and may prevent respondent-company from assuring liabilities with respect to other unsuspecting third parties, this Court is satisfied that it would be just, equitable and proper to appoint a provisional liquidator of the respondent-company. Consequently, both the Co.Application (Nos.148/2010 & 154/2010) are allowed. Official Liquidator attached to the Court is appointed as Provisional Liquidator of respondent-Company who is directed to take possession & control of all the assets, properties, funds & affairs of respondent-Company and may discharge his duties in accordance with provisions of Co. Act & Rules framed thereunder. ;