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2016 (3) TMI 335 - GUJARAT HIGH COURT

2016 (3) TMI 335 - GUJARAT HIGH COURT - TMI - Winding-up petition - appointment of Official Liquidator - Held that:- This Court has granted more than sufficient time to the respondent-Company in order to make the payment of the outstanding dues of the petitioner, not disputed by the respondent-Company. The Undertaking given by the respondent-Company before this Court has not been honoured by it and all the Cheques handed over to the petitioner pursuant to the said Undertaking have been dishonour .....

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-Company has lost its financial substratum and is unable to pay its debts.

M/s. Sparta Cements and Infra Limited”, the respondent-Company, is hereby ordered to be woundup. The Official Liquidator attached to this Court is appointed as the Official Liquidator of the respondent-Company and is directed to take over the possession of the entire assets of the respondent-Company, that is, movables, immovables as well as Bank Accounts etc. The Official Liquidator is further directed to take .....

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. Sparta Cements and Infra Limited , the respondent-Company, and to appoint the Official Liquidator attached to this Court as the Liquidator of the entire assets, properties, affairs and records of the respondent-Company, with all available powers under the Companies Act. 2. It is the case of the petitioner that the respondent-Company has been incorporated under the provisions of the Companies Act and its registered office is situated at 400, Platinum Plaza, Judges Bungalow Road, Ahmedabad, Guja .....

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25.10.2008. The fresh Certificate of Incorporation dated 25.10.2008, issued by the Registrar of Companies, Gujarat, Dadra and Nagar Haveli, is annexed as AnnexureD to the petition. According to the petitioner, the respondent-Company has failed to discharge its undisputed liability, hence, it is urged, an order of winding-up may be passed by this Court. 3. The petitioner is engaged in the business of undertaking engineering and mechanical contracts for fabrication, erection, installation and com .....

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t several bills issued by the petitioner to the respondent-Company, have not been honoured and have remained unpaid. The total outstanding amount, as per the Books of Accounts of the petitioner, as on 30.04.2010, amounts to ₹ 3,48,55,560=57. On 06.02.2010, the officials of the petitioner had a meeting with Mr. Hemant Pandey, the CMD of the respondent-Company, at its registered office at Ahmedabad. During this meeting, it was decided that the claim of the petitioner would be settled on, or .....

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partpayment of the dues, the respondent-Company has issued ten Cheques of rupees ten lakh each, drawn on Union Bank, Ashram Road, Ahmedabad Branch. However, all the above Cheques were dishonoured due to insufficient funds in the account of the respondent-Company. The petitioner has filed complaints under Section 138 of the Negotiable Instruments Act, 1881, against the respondent-Company and its Managing Directors, which are pending. As the respondent-Company has consistently failed to make payme .....

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made in the petition deserve to be granted. 6. This Court has heard Mr. R.D.Kinariwala, learned advocate for Mr. P.T.Chacko, learned advocate for the petitioner and Mr. D.K.Trivedi, learned advocate for the respondent-Company, at length, and perused the material on record. 7. Mr. R.D.Kinariwala, learned advocate for the petitioner, has taken the Court through the contents of the reply dated 10.02.2010, to the Statutory Notice issued by the respondent-Company, the communications issued by the pe .....

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the accounting work. In the Minutes of the Meeting held between the petitioner and the respondent-Company on 06.02.2010, it has been specifically recorded that it has been decided that the outstanding dues of the sundry debtors would be settled by the respondent-Company on, or before, 20.02.2010. 8. Learned counsel for the petitioner has relied upon a judgment of the Supreme Court in M/s. Vijay Industries v. M/s. NATL Technologies Ltd. AIR 2009 SC 1695, to submit that interest would come under .....

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as talks of settlement, or term loan, are going on, which is likely to be sanctioned within a short spell of time. 11. Apart from the above stand, no dispute has been raised by the respondent-Company to the dues payable by it to the petitioner. Hence, there remains no doubt regarding the fact that the dues of the petitioner have been admitted by the respondent-Company. 12. On 07.08.2014, this Court has passed an order admitting the petition. However, the order of publication had been deferred, .....

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/05/15 50,00,000/- 7 866165 23/05/15 50,00,000/- 8 866166 31/05/15 23,55,560=57 Total: 3,48,55,560=57 14. It is specifically stated by the respondent in the Undertaking that the Respondent further undertakes that the aforesaid cheques would be cleared on being presented with the bank (emphasis supplied). 15. It is an admitted fact that all the above Cheques have been dishonoured by the Bank. The respondent-Company has, therefore, failed to honour the Undertaking given by it to this Court. Even t .....

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request of the respondent-Company, this Court adjourned the matter from time to time with a view to give chance to the respondent-Company to come out from the financial crisis. However, from the evidence on record, it is clear that the respondent is not in a position to pay its debts and, therefore, as per Section 433 read with Section 434 of the Companies Act, prima facie it is revealed that the respondent-Company is unable to pay its debts. In view of this position, the following order is pass .....

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nt-Company Mr. Trivedi once again requested that this Court may give last chance to the respondent-Company to settle the matter with the petitioner and, therefore, at this stage, order of advertisement may not be passed and the same may be deferred for a period of eight weeks. The request is accepted. The publication of advertisement is deferred for a period of eight weeks. S.O. to 4.9.2015. 17. As is clear form the above order, once again, the order of publication of the advertisement was defer .....

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ation of the advertisements has been carried out as per the directions of this Court. 18. When the petition came up for final hearing on 27.01.2016, Mr. D.K.Trivedi, learned advocate for the respondent-Company made a statement, upon instructions, that the respondent-Company is desirous of settling the dues of the petitioner, therefore, time, as prayed for, was granted. As the respondent-Company failed to arrive at any settlement with the petitioner or make the payment of its outstanding dues, th .....

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