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2016 (8) TMI 170 - HC - Companies LawWinding up petition - Respondent Company is unable to pay its debts - Held that:- As the reference filed by the Respondent Company before the BIFR and which was registered on 10 December, 2015, is not non-est in the eyes of law, and therefore, there is no question of the Respondent Company getting protection under Section 22 of SICA, 1985. Therefore, unable to accept the submission of Mr Kadam that this Petition cannot proceed and/or be heard and finally disposed of. As it is not in dispute that a huge amount is due and payable by the Respondent Company to the Petitioner. In fact, in the consent terms filed in this Court dated 19 June, 2014, the Respondent Company has expressly admitted its liability to the Petitioner in the sum of ₹ 95.32 Crores. Admittedly, this amount has not been paid. In fact, Mr Kadam very fairly conceded before me that as far as merits of this Petition are concerned, the Respondent Company has no defence and the only point canvassed before me was the one dealt by me earlier. In this view of the matter, I find that the Respondent Company is indebted to the Petitioner for huge amounts and therefore commercially insolvent and unable to pay its debts. In this view of the matter, the Company Petition is allowed in terms of prayer clauses (a) and (b) which read as under:- (a) that the Company viz. S. Kumars Nationwide Limited, be wound up by and under the orders and directions of this Hon'ble Court under the provisions of the Companies Act, 1956, and the Official Liquidator attached to this Hon'ble Court be appointed as the Liquidator of the Company and all its assets, books of accounts, vouchers, files, documents etc. with all powers under the Companies Act, 1956; (b) that pending hearing and final disposal of this Petition, the Official Liquidator of this Hon'ble Court or some other fit and proper person be appointed Provisional Liquidator of the Company i.e. S. Kumars Nationwide Limited with all powers under the Companies Act, 1956, including power to take charge of all the assets, properties, stock-in-trade, books of accounts and Bank accounts of the Company. As the learned counsel appearing on behalf of the Respondent Company, prays that the operation of this order be stayed for a period of four weeks from today. The said request is vehemently opposed by all the Petitioners. Considering that there are conflicting decisions on the point decided it would be, in the interest of justice to stay the operation of this order for a period of four weeks from today to enable the Respondent Company to test this order in appeal. It is, however, clarified that the interim orders passed in the Company Petitions, namely, the orders dated 28 August, 2014 read with the order dated 15 September, 2014 shall continue to operate against the Respondent Company.
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