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2016 (2) TMI 243 - GUJARAT HIGH COURT

2016 (2) TMI 243 - GUJARAT HIGH COURT - TMI - Winding up petition - Held that:- On the basis of the material on record, the petitioner has succeeded, in primafacie establishing its case, especially, as the respondent-Company has not denied that it was liable to make the payment for the goods supplied by the petitioner which, according to it, was made to M/s.Unisilk Limited.

Considering all the above aspects and as no material has been produced on record substantiating the claim of the .....

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dator attached to this Court is appointed as the Provisional Liquidator of the respondent-Company and is directed to take over the charge and possession of the assets of the respondent-Company and to prepare an inventory of the office premises, books of accounts and all other assets of the respondent-Company, as required.

At this stage, a request is made by Mr.Niral Mehta, learned advocate for the respondent-Company that the petition may not be advertised for a period of two weeks. Th .....

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Hon ble Court in accordance with the provisions of the Companies Act, 1956; b) this Hon ble Court be pleased to appoint the Official Liquidator, High Court, Gujarat, as Liquidator of the Company together with all its business, assets, properties, income and books of accounts with all the powers under the provisions of Companies Act, 1956; c) pending the hearing and final disposal of the Petition, the Official Liquidator, High Court, Gujarat, or some other fit and proper person be appointed the P .....

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umbering or creating third party rights on any of the assets and properties of the Company or on any part thereof; e) for ad interim reliefs in terms of prayers (c) and (d); f) this Hon ble Court be pleased to pass such further and other orders as the nature and circumstances of the case may require; g) the costs of the present Petition be granted to the Petitioner. 2. The petitioner is a Company incorporated under the provisions of the laws of Kenya and is carrying on the business of exporting .....

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bi and delivered to the respondent-Company, at the destinations required by the said Company, the said goods. The petitioner was assured payment immediately upon receipt of the goods. As it already had dealings with the respondent-Company, earlier, the petitioner supplied the goods without insisting on an advance, or even a Letter of Credit in respect of the orders placed by the respondent-Company. Many a times, the goods were loaded in the presence of, and under the supervision of, one Mr.Vijay .....

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by the respondent-Company. A total amount aggregating to US$ 3,019,498=50 was due and payable by the respondent-Company, against which, the respondent-Company has paid to the petitioner, an amount aggregating US$ 1,940,365=50 only, from time to time, but has failed to pay the balance amount of US$ 1,079,133=00, which, as stated above, is due and payable to the petitioner. The petitioner repeatedly followed up with the respondent-Company for the payment of the balance outstanding amount. Accordin .....

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tioner would be entitled to file windingup proceedings against the Company. The respondent-Company replied to the statutory notice vide a communication dated 05.04.2014, denying the averments made in the statutory notice issued by the petitioner and contending that the notice was vague and, therefore, the petitioner was advised to call for strict and proper evidence in support of its claim. It is the case of the petitioner that the denial in the reply dated 05.04.2014, is without justification a .....

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to pay its debt and is commercially insolvent. 5. This Court has heard Mr.A.S.Vakil, learned advocate for the petitioner and Mr.Niral Mehta, learned advocate for the respondent. 6. It is submitted by Mr.A.S.Vakil, learned advocate for the petitioner, that there is no dispute, whatsoever, in respect of the goods sold and delivered to the respondent-Company and the amount due in respect thereto. The respondent-Company is wrongly denying the claim of the petitioner as an afterthought, which denial .....

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e Bank to M/s.Unisilk Limited. It is by submitted by Mr.Vakil that nothing to this effect has been stated in the reply to the statutory notice given by the respondent-Company, on 05.04.2014. There is no mention in the said reply regarding M/s.Unisilk Limited, or any agreement purported to have been entered into between the petitioner, the respondent-Company and M/s.Unisilk Limited, to the effect that the payment for the goods supplied directly by the petitioner to the respondent is to be made to .....

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is any dispute regarding the quality of the goods. The respondent-Company has come out with a new case for the first time before this Court, that the invoices are disputed and that there were issues regarding the quality and timely delivery of the goods in question. Had that been the case, nothing had prevented the respondent-Company from stating so in the reply. In any case, the contention that there were issues regarding the timely delivery and the quality of goods between the respondent-Compa .....

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ault, therefore, it cannot be said that the respondent-Company is unable to pay its dues. 10. Learned counsel for the petitioner has submitted that the respondent-Company is in debt to the State Bank of India, which has issued public notices in the English daily newspaper The Times of India on 10.11.2015. In one of the notices, the respondent-Company is one of the guarantors, as is Mr.Vijay Arvindbhai Patel, the deponent of the affidavitinreply and the affidavitinsurrejoinder. In the other notic .....

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the effect that the respondent-Company has discharged its liability towards interest to the Bank is also incorrect, as the State Bank of India has also filed O.A. No.433 of 2015, before the Debt Recovery TribunalI, Ahmedabad, under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ( RDDB Act ), for the recovery of ₹ 18,15,95,360/, with interest. The said averments are, therefore, false to the knowledge of the petitioner, though they have been stated .....

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not disputed by the respondent-Company. The said Bills of Lading correspond to the invoices produced by the petitioner. 12. It is next submitted on behalf of the petitioner that no communication between the respondent-Company and M/s.Unisilk Limited, to establish the alleged claim of the respondent-Company of making payment of the dues of the petitioner to M/s.Unisilk Limited has been produced on record. 13. It has now been contended by the respondent-Company that earlier, it was transacting bus .....

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nd is clearly an afterthought. 14. On the strength of the above submissions, it is contended by Mr.A.S.Vakil, learned advocate for the petitioner, that the material on record would establish that the debt of the petitioner is due and payable by the respondent. The respondent-Company is unable to pay its liabilities and, therefore, it can be concluded that it has lost its financial substratum, therefore, the petition be admitted and advertised. 15. Per contra, Mr.Niral Mehta, learned advocate for .....

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llectively, by submitting that the numbers and dates of the invoices are the same as the seven invoices produced by the petitioner and the invoices produced by the respondent show that payment for the goods in question was made to M/s.Unisilk Limited by the respondent-Company. 16. It is further submitted on behalf of the respondent that the Bank has also cleared the said payment and it was M/s.Unisilk Limited that was to further transmit the amount to the petitioner as per the mutual agreement. .....

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statement of the State Bank of India at Page102 of the paperbook, wherein, it is shown that the petitioner has made payments between ₹ 15 lakhs to ₹ 50 lakhs between 27.11.2014 to 09.04.2015, to its creditors. 18. It is submitted that when the petition was filed, no recovery proceedings had been initiated by the State Bank of India against the respondent-Company. The said proceedings, which are now pending under the SARFAESI Act and the RDDB Act, are, therefore, not relevant insofar .....

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ties at length, perused the averments made in the petition and the contents of the other pleadings. 21. From the submissions advanced by learned counsel and the material on record, there does not appear to be any dispute regarding the fact that business transactions did took place between the petitioner and the respondent-Company for which certain payments had to be made by the respondent-Company. In that sense, therefore, there is no denial by the respondent-Company regarding the dues to be pai .....

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ling the relevant invoices. In its reply to the statutory notice dated 05.04.2014, the respondent-Company has only stated that the allegations against it are not specifically admitted by it and that the petitioner has not given a correct version of facts and the notice is vague. It is further stated that the notice is concocted and fabricated and is, therefore, disputed and not accepted by the respondent-Company. There is no denial in the said reply, of the transactions between the parties or th .....

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n the year 201415. Though no balancesheet or other documents are produced to substantiate this claim of the respondent-Company, even if the statement of the respondent-Company is taken at its face value, one would expect that a Company with such a huge turnover would, at least, put into writing any agreement for payment of dues involving a huge amount between it, the petitioner and M/s.Unisilk Limited, into writing. No such agreement has been produced before this Court to substantiate the claim .....

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d have adverted to this aspect in its reply to the statutory notice, which has not been done. The entire defence of the respondent-Company, therefore, rests on the socalled mutual agreement between it, the petitioner and M/s.Unisilk Limited. There is no communication or document of M/s.Unisilk Limited to the effect that such an agreement took place and that it was acting as a conduit for payments between the respondent-Company and the petitioner. 24. Insofar as the genuineness and authenticity o .....

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of discharging its liabilities, primafacie, rings false. 25. The aspect that certain dues of the other creditors amounting to rupees fifteen to fifty lakhs have been paid by the respondent-Company would not detract from the fact that it is unwilling, or unable, to pay the dues of the petitionerCompany. 26. One more glaring aspect is that, though the respondent-Company claims to have a turnover of rupees one hundred crores in the year 201415, it has not produced any documents to this effect on t .....

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