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2016 (2) TMI 435 - RAJASTHAN HIGH COURT

2016 (2) TMI 435 - RAJASTHAN HIGH COURT - TMI - Application for winding up of the respondent Company-Sumatex Limited - Failure to pay salary - The petitioner requested the Respondent Company to release his salary since February, 2013 by way of numerous e-mails, but to no avail. - whether unpaid salary of an employee would constitute debt.

Held that:- Indisputably, the petitioner had resigned from service on 7.8.12. According to the Respondent Company, the resignation tendered by the p .....

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of the petitioner on 6.3.13 and on that account, suffered penalty for late filing.

Looking to the dispute sought to be raised by the Respondent Company regarding the petitioner's entitlement for various reason, it cannot be concluded that the liability regarding payment of salary as claimed by the petitioner stands proved/admitted by the Respondent Company and therefore, this Court is not inclined to direct winding up of the Respondent Company in terms of provisions of Section 433(e .....

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Petition dismissed - Decided against the appellant. - S.B.COMPANY PETITION NO.9/13 - Dated:- 8-10-2015 - MR. SANGEET LODHA, J. For The Petitoner : Mr. Siddharth Tatia For The Respondent : Mr. Vikas Balia with Mr.Arjun Bhattar 1. This Company Petition under Section 433 read with Sections 434 and 439 of Companies Act, 1956 (for short the Act ) has been filed by the petitioner seeking winding up of the respondent Company-Sumatex Limited (for short Respondent Company ), on the grounds a .....

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resignation on 7.8.12. According to the petitioner, the resignation submitted was not accepted and he continued to work with the Respondent Company as Company Secretary. The Respondent Company has paid salary to the petitioner upto January, 2013. The petitioner requested the Respondent Company to release his salary since February, 2013 by way of numerous e-mails, but to no avail. The petitioner served the Managing Director of the Respondent Company with the registered letter dated 10.7.13 reques .....

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to leave the company after a month. According to the petitioner, he was continued in service and was authorized to sign the Audited Balance Sheet and Profit and Loss Account of financial year 2011-12 on behalf of the Respondent Company as per Section 215 (1) (ii) of the Act on 6.9.12 and thereafter, the petitioner was authorized to sign Annual Return of the company on behalf of the Board of Directors as per Section 159 of the Act on 29.9.12. It is submitted that a perusal of the reply to the no .....

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od and with a view to defeat the claims of the creditors including that of the petitioner, the Respondent Company is in process of disposing off and/or siphoning its assets. Accordingly, it is contended that the Respondent Company is liable to be wound up under the provisions of Clause (e) and (f) of Section 433 of the Act. 3. A reply to the company petition has been filed on behalf of the Respondent Company raising preliminary objection in terms that there is no admitted liability of the Respon .....

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petitioner continued to visit company premises intermittently in the name of finishing pending projects and/or for completing formalities uptil January, 2013. It is stated that the petitioner did not submit the Form No. 32, and therefore, the Respondent Company itself submitted the Form No.32 before the Registrar of the Companies which is placed on record as Annexure-R/2. It is submitted that after having resigned from the Respondent Company, the petitioner had already been employed by another c .....

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fically denied. It is also denied that the Respondent Company is in the process of disposing off and/or siphoning its assets and the creditors of the Respondent Company are facing any kind of liquidity crunch or otherwise. It is submitted that Bank of Baroda has sanctioned additional term loan to the Respondent Company for expansion. 4. By way of rejoinder to the reply, the petitioner has claimed that as per the version of the Respondent Company, Form No.32 was filed in November, 2013 and theref .....

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ned as 6.3.13. It is submitted that the petitioner has signed annual return of the company and filled the Form No.20B, 23AC and 23 ACA as a Company Secretary after date of his alleged resignation i.e. 7.8.12. It is submitted that admittedly the Respondent Company has paid salary to the petitioner till January, 2013 and therefore, it is clear that the petitioner's resignation dated 7.8.12 was never accepted. It is submitted that on account of non filing of Form No.32, the petitioner was unabl .....

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submitted that the Respondent Company is not in good financial health. 5. I have heard the learned counsel for the parties and perused the material on record. 6. Learned counsel appearing for the petitioner contended that the unpaid salary of an employee would constitute debt and therefore, the petitioner whose arrear of salary has not been paid has to be treated a creditor and the petition preferred by the petitioner on account of inability of the Respondent Company to pay the debt is maintain .....

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o maintain the petition on the ground in terms of provisions of 433(e) of the Act, the company deserves to be wound up as it has lost its financial substratum. Learned counsel would submit that the outstanding dues of salary of the petitioner stands admitted by the Respondent Company inasmuch as, the continuance of the petitioner in service after resignation till 6.3.13 is not even disputed and admittedly, the salary for the month of February, 2013 has not been paid to the petitioner. Learned co .....

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of clause (f) of Section 433 of the Act as well. 7. On the other hand, the counsel appearing for the respondent reiterating the stand taken in the reply to the petition, submitted that after resignation, the petitioner had already joined another company and he used to visit the Respondent Company only intermittently for finishing the pending projects and/or completing the formalities uptil January, 2013. It is submitted that admittedly, the petitioner has already been paid the outstanding dues .....

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condition of the company being not good, is absolutely baseless. 8. I have considered the rival submissions and perused the material on record. 9. Indisputably, the petitioner had resigned from service on 7.8.12. According to the Respondent Company, the resignation tendered by the petitioner was accepted on the same day, but he continued to attend the office of the Company intermittently uptil January, 2013, for completing the pending work and he has been paid the salary upto the month of Januar .....

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the necessary information regarding the change, in the prescribed form, within a period of 30 days and thus, the lapse, if any, in filing the Form 32 cannot be attributed to the petitioner. Though, the Respondent Company has taken the stand that the petitioner's resignation was accepted on 7.8.12, but then, as noticed hereinabove, it is admitted on behalf of the Respondent Company that the petitioner intermittently attended the office of the Company for completion of the projects. Moreover, .....

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eriod from the month of March, 2013 to July, 2013 is not proved by any cogent evidence on record. 11. There is yet another aspect of the matter. The Respondent Company has taken the specific stand that the petitioner while hoodwinking the Respondent Company into believing that the petitioner wants to pursue higher studies and will not be able to give time, was rendering professional service to another Company in Bhilwara in violation of provisions of Company Secretaries Act, 1980. 12. Replying t .....

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etaries Act, 1980. 13. Thus, on the facts and the circumstances of the case, on the basis of the material on record, though, it appears that the petitioner has not been paid salary for the month of February, 2013 but then, on the basis of the material on record, no conclusion can be drawn that the petitioner continued as Company Secretary of the Respondent Company upto month of July, 2013. Moreover, looking to the dispute sought to be raised by the Respondent Company regarding the petitioner' .....

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