TMI Blog1998 (8) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... ravatex Ltd. in support of this fact is produced at Annexure "A" to the petition. The respondent-company had also agreed and confirmed vide letter dated 1-2-1989 (Annexure "B") that the respon-dent-company would co-accept the lease rental bills to be issued by Cravatex Ltd. to Desai (P.) Ltd. for which Cravatex Ltd. would be making payment of co-acceptance fees to the respondent-company at the rate of Re. 0.25 per Rs. 100 per month. Accordingly, by letter dated 1-7-1989 (Annexure "F" colly.), the respondent-company through its Managing Director (Operations) informed the Cravatex Ltd. that the latter may appropriate the monthly lease rentals due to the respondent-company under the lease agreements referred to therein towards the lease rental dues from Desai (P.) Ltd. for which the respondent-company had signed bills in the capacity of co-acceptor. Even the cheques of monthly rentals given by the said party Desai (P.) Ltd. were to be presented with the bankers depending upon the advice from the respondent-company as is clear from the letter dated 15-6-1989 (Annexure F colly.) and from the letter dated 28-9-1989 (Annexure G ). Thereafter, by letter dated 29-11-1989 (Annexure I ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and said Desai (P.) Ltd. Thereafter, the Vice-President of the respondent-company filed another affida- vit dated 23-3-1992 contending that there was adjustment of certain amounts in years 1987-88 and 1988-89 and that the petition deserves to be dismissed. It was further pointed out that the company had been in temporary difficulties and the company was making rigo- rous efforts for the recovery from the sub-lessees. Again affidavit dated 20-3-1995 was filed by Yezdi J. Master, Director of the respondent-company reiterating the statements contained in the previous affidavits dated 27-9-1991 and 23-3-1992. It contended that the respondent-company had never acknowledged nor consented to the variation of the terms of the lease agreements between the petitioner and Desai (P.) Ltd. and that as per the memorandum of articles of the respondent-company the respondent s purported action for co-accepting the bills issued by the petitioner is ultra vires and not capable of ratifica-tion. It is further submitted that Desai (P.) Ltd. has been amalgamated with Tensile Steel Ltd., which is a sick industrial unit before the BIFR. It is further submitted that even if the petitioner has any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company prayed for time on the ground that she does not have the papers and that Mr. Pardiwala who had earlier appeared as senior counsel was not available today. Similar request was made earlier on 18-8-1998. This Court had, therefore, record ed that in view of pendency of these petitions since 1990 and non-payment of dues to a number of creditors or a number of years, the petitions shall be taken up for final hearing on 27-8-1998 and that no further adjourn- ment shall be granted. Hence, the petitions are taken up for final hearing today. It is also required to note that earlier when the application for appoint- ment of Provisional Liquidator came up for hearing on 6-5-1998, this Court had directed the respondent-company to deposit 60 per cent of the dues in this Court before 25-6-1998 to show their bona fides. Inspite of the said order dated 6-5-1998 passed in Company Application No. 154 of 1998, the respondent-company did not deposit any amount. Similar direction was given in respect of the dues of the petitioning creditors in Company Petition Nos. 9 and 126 of 1990. The said directions have not been complied with either, but at the instance of the respondent-company the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount from out of the sale proceeds of the immovable proper- ties or otherwise. On the contrary, it is pointed out that even as per the admission made on behalf of the respondent-company itself, land of the respondent-company at Navsari is under the attachment of the Income- tax Department for a claim of Rs. 70 lakhs. It is, therefore, submitted by Mr. Puj that the respondent-company is unable to pay its debts and deserves to be wound up. 10. The learned counsel for the respondent-company is not in a position to show as to how the respondent-company would be able to pay the dues of the petitioning creditors running into lakhs of rupees when the respon-dent-company is not shown to be carrying on any business and when, according to its own admission, its property at Navsari is under attach- ment of the Income-tax Department for a claim of Rs. 70 lakhs. It is, therefore, clear that the company is unable to pay its debts and otherwise also it appears to be just and equitable to wind up the company as it is only upon winding up of the company and upon sale of the assets of the company that the creditors shall be in a position to recover the amounts due and payable by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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