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Kotak Mahindra Bank Limited Versus Hari Ugam Marketing and Distribution Company Pvt. Limited

Winding up petition - Held that:- It is prima facie evident that the respondent company has neglected to pay its due debt to the petitioner Bank despite its obligation and notice, and therefore per se is deemed to be insolvent.

The petition is accordingly, admitted. The citation of the winding up petition being admitted be published by the petitioner in two news papers i.e. The Times of India (English) and Dainik Bhaskar (Hindi) Jaipur Edition in terms of Rule 24 of the Companies (Cou .....

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the respondent Hari Ugam Marketing & Distribution Company Private Limited (hereinafter the respondent Company') having its registered office at Hari Ugam, E-61, Chitranjan Marg C-Scheme, Jaipur. The case of the petitioner Bank is that the respondent company is engaged in the business of distributors, stockist, retailers, clearing and forwarding agents etc. and has a nominal capital of ₹ 10,000,000/- (One Crore) divided into 10,000,000 share of ₹ 10 each of which the paid up c .....

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m the petitioner Bank, the respondent Company failed to maintain proper financial discipline and did not abide by payment of instalments scheduled in the loan agreement and neglected to repay the due instalments. Even the post dated cheques issued by the respondent company were dishonoured. The respondent company's loan account has been foreclosed whereupon as on 23-6-2012 an amount ₹ 32,12,485.21 became due against the respondent company. Thereafter despite repeated requests the respo .....

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emed to be commercially insolvent and hence liable to be wound up in public interest. The respondent company filed reply to the petition. Preliminary objections have been laid. It has been submitted that on 3-11-2011 an original Application No.163/2011 was filed by the petitioner Bank against the respondent Company under Section 19 of the Recovery of Debts due to Bank and Financial Institutions Act, 1993 (hereinafter the Act of 1993') before the Debt Recovery Tribunal (hereinafter the Tribun .....

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Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Hence the notice sent by the petitioner Bank on 25-6-2012 was returned with the remark left . It has been submitted that in the facts of the case the petitioner Bank having resorted to its remedy in law for recovery of due amount, this winding up petition filed by the petitioner Bank is a misuse of legal process and is liable to be dismissed. No other argument in defence has been advanced. Heard lea .....

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regard to the debt to the petitioner Bank. The only defence taken is that the petitioner Bank had availed its remedies to recover the due amount by resort to application under Section 19 of the Act of 1993 before the Debt Recovery Tribunal, whereupon a certificate of recovery was issued by the Tribunal in favour of the petitioner Bank. It has been submitted that while proceedings under the Act of 1993 were taken on 3-11-2011 for recovery of ₹ 26,66,945.79 along with interest thereon the co .....

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(Delhi)], and Haryana Telecom Limited Vs. Sterlite Industries (India) Ltd. [AIR 1999 SC 2354] wherein it has been categorically held that mere filing of application for recovery of debt before the Tribunal under the provisions of the Act of 1993 would not entail a bar in law to laying a winding up petition under the provisions of Act of 1956, where conditions therefor provided are proved to have been satisfied. It was held that recovery proceedings under the provisions of Act of 1993 entail a wh .....

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