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2012 (9) TMI 5 - HC - Companies LawApplication seeking appointment of a provisional liquidator - Held that:- As in the instant case, the respondent company has admitted its liability to the petitioner in the statement of account for the year ending 31.03.2002 in the sum of Rs. 8,00,04,000/ first being admitted in the balance-sheet for the year ending 31.03.2001 and thereafter reaffirmed in the balance-sheet for the year ending 31.03.2002 - The performance review of the company as is evident from the Directors' Report dated 21.06.2002 also shows that during the year under review i.e. for the year ending 31.03.2002, the company had incurred a loss of Rs. 5,039 lacs as against a loss of Rs. 7,579 lacs. This is also reflected in the balance-sheet of the company for the year ending 31.03.2002. These admissions are of the year 2002, a decade has passed, even the admittedly liability by the respondent has not been liquidated. Reply filed by the respondent has merely averred that the financial ill-health of the company is not by itself a sufficient ground to order the appointment of a provisional liquidator, he has qualified this submission by stating that the health of the company is changing day to day, however, this reply is totally silent as to how the health of the company has improved over this period of 10 years, there is not a whisper in this reply that the financial condition of the company has either improved or is improving, no document i.e. no balance-sheet/statement of account of any year after 2002 has been filed to substantiate an argument which is now being pitched that the company has in fact gained a momentum, this submission is wholly un - substantiated - In this factual scenario submission of the petitioner that there is every possibility that the assets of the company will frittered away and the same may be alienated/transferred which will affect not only the interest of the petitioner creditor but the interest of the other creditors at large is also a submission not without force, thus this Court is of the opinion that there is danger of the properties of the respondent-company being transferred/alienated. It would thus be expedient to appoint a provisional liquidator to protect the assets of the company which appear to be in a jeopardy - direction to the respondent company, its directors, officers, employers, authorised representatives restrained from selling, transferring, alienating, encumbering and parting with the possession of any movable and immovable assets and funds - in favour of petitioner creditor.
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