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2016 (4) TMI 783 - MADRAS HIGH COURT

2016 (4) TMI 783 - MADRAS HIGH COURT - TMI - Winding-up petition - Held that:- From the exchange of notices between both parties, it is clear that there is no dispute regarding the amounts demanded by the respondent-Company and the amounts due to the respondent-Company had been clearly proved. Hence, the argument of the learned counsel for the appellant-Companies that the demand is neither admitted nor proved, is not at all sustainable.

The appellant-Companies have not paid the amount .....

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he provisions of the Companies Act.

It is admitted by both parties that the Official Liquidator of this Court, appointed by the learned single Judge, has taken charge and further proceedings are initiated by him in respect of the winding-up of the appellant- Companies and the same are pending progress.

Thus, from the above facts and circumstances of the case and on a perusal of the above provisions of law, it is clear that inspite of issuance of such notices, the appellant- .....

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.No.1/2014 in each O.S.A - Dated:- 5-1-2016 - S. Tamil Vanan And G. Chockalingam, JJ. For the Petitioner : Mr V Pavel For the Respondents : Mr C A Diwakar JUDGMENT Original Side Appeal No.252 of 2014 is filed against the order dated 11.09.2014 passed by the learned single Judge in Company Petition No.325 of 2013 on the file of this Court. 2. Original Side Appeal No.253 of 2014 is filed against the order dated 11.09.2014 passed by the learned single Judge in Company Petition No.202 of 2013 on the .....

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ss the following order: i) The Company Petition is admitted. ii) Notice to the respondent. iii) Notice on the Court Notice Board. iv) Notice to the Registrar of Companies, Chennai. v) Notice to be affixed in the Registered Office of the respondent-Company. vi) The petitioner-Company is directed to publish the Company Petition in one issue of English Daily viz., "The New Indian Express" circulated in Chennai and one issue of Tamil Daily viz., "Daily Thanthi" circulated in Chen .....

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n thousand only) towards initial expenses before the Official Liquidator in this matter. Post the matter on 27.10.2014." Company Petition No.202 of 2013 "8. Having regard to the submissions made by the learned counsel on either side and also taking into consideration the materials available on record before this Court, I pass the following order: i) The Company Petition is admitted. ii) Notice to the respondent. iii) Notice on the Court Notice Board. iv) Notice to the Registrar of Comp .....

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urt, Madras is appointed as Provisional Liquidator and is directed to take charge of the assets of the respondent-Company. The Ex-Directors of the respondent-Company are directed to file their statement of affairs before the Official Liquidator within a period of 21 days. The Company shall deposit a sum of ₹ 10,000/- (Rupees ten thousand only) towards initial expenses before the Official Liquidator in this matter. Post the matter on 27.10.2014." 4. Learned counsel for the appellant-Co .....

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e failed to consider the fact that the amount payable for the services rendered by the respondent-Company, is only unilateral demand at the instance of the respondent-Company and the demand, which is the subject matter of the winding-up petitions at the instance of the creditor, is neither admitted nor proved. He also contended that the learned single Judge failed to consider the aspect that the respondent-Company is bent upon using the Company Court as a mode of recovery of its dues. Learned co .....

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on of the Company Court is being abused by filing winding-up petitions to pressurise the companies to pay the debts which are substantially disputed and the courts are very casual in issuing notices and ordering publication in the newspapers which may attract adverse publicity. .... " (b) 1965 (35) Comp.Cas. 456(SC) (Amalgamated Commercial Traders) (P) Ltd. Vs. A.C.Krishnaswami): "13. It is well-settled that "a winding up petition is not a legitimate means of seeking to enforce pa .....

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The modern practice has been to dismiss such, petitions. But, of course, if the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order." (Vide Buckley on the Companies Acts, 13th edition, page 451)." (c) 1971 (3) SCC 632 (Madhusudan Gordhandas & Co. Vs. Madhu Woollen Industries (P)Ltd.) "20. Two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up t .....

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d. (See Re. Brighton Club and Horfold Hotel Co. Ltd. - (1865) 35 Beav. 204)" (d) 2009 (3) SCC 527 (Vijay Industries Vs. NATL Technologies Ltd.): "39. It is, however, of some interest to note that the Division Bench (in Mediquip Systems case - 2005 (7) SCC 42, SCC p.50, para 24) referred to a decision of the Madras High Court in Tube Investments of India Ltd. Vs. Rim and Accessories (P) Ltd. - 1990 (3) Comp.L.J. 322 (Mad) where the following principles relating to bona fide dispute had .....

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eventuality, the Company Court itself is competent to decide such a dispute in the winding-up proceedings; and (3) If there is no bona fide dispute with regard to the sum payable towards the principal, it is open to the creditor to resort to both the remedies of filing of a civil suit as well as filing of a petition for winding up of the company." In that case also a bona fide dispute was raised by the company." 5. Learned counsel for the respondent-Company contended that the learned s .....

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respondent-Company is engaged in the business of providing security services for offices, factories, etc. In the course of their business, the respondent-Company provided security services to the appellant-Companies. According to the respondent-Company, the appellant-Companies had not paid the amounts due under various bill amounts. Hence, the respondent-Company issued notices detailing various bill amounts due, for which, the appellant-Companies sent the reply notices. Since the bill amounts du .....

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e company is unable to pay its debts; (f) if the Tribunal is of the opinion that it is just and equitable that the company should be wound up; Section 434: Company when deemed unable to pay its debts: (1) A Company shall be deemed to be unable to pay its debts- (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one lakh rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise .....

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nt or prospective creditor or creditors; ...... ........" 9. It is seen that in the legal notices dated 02.05.2009 issued by the respondent-Company to the appellant-Companies, the respondent-Company has specified the amounts due to them, stating as follows: M/s.Rudra Dev Aviation Pvt. Ltd: (Appellant in OSA.252/2014): "4. My client hereby calls upon you to pay the sum of ₹ 2,05,886/- along with interest @ 24% per annum as claimed in the previous paragraph within 21 days of receip .....

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ent will be obliged to initiate such action as they are advised including filing of winding up petition against you. The charges of this notice ₹ 2000/- is also payable by you." 10. To the above notices, the appellant-Companies replied on 17.07.2009 stating as follows: "We refer to your notice dated 2nd June 2009. We had asked for certain information/details from your client Globe Detective Agency (P) Ltd. We await furnishing of information after which we shall process for paymen .....

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s an admitted sum and a liquidated one. Though my clients are entitled to claim interest on each billing, they are restricting their claim for interest @ 24% per annum from the date of this legal notice. 4. My client hereby calls upon you to pay the sum of ₹ 2,05,886/- along with interest @ 24% per annum as claimed in the previous paragraph within 21 days of receipt of this notice, failing which my client will be obliged to initiate such action as they are advised including filing of windi .....

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ot been settled inspite of several demands, my client has no other option other than to issue this legal notice. My client has already issued notice dated 02/05/2009 through me and the same may be read as part and parcel of this notice. After my earlier notice dated 02/05/2009 you have made a part payment of ₹ 3,00,000/- only and no further payment has been made by you. Hence this notice is issued afresh. The amount due to my client is an admitted sum and a liquidated one. Though my client .....

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ling which my client will be obliged to initiate such action as they are advised including filing of winding up petition against you. The charges of this notice ₹ 2000/- is also payable by you." 13. Hence, from the above exchange of notices between both parties, it is clear that there is no dispute regarding the amounts demanded by the respondent-Company and the amounts due to the respondent-Company had been clearly proved. Hence, the argument of the learned counsel for the appellant- .....

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received by the appellant- Rudra Dev Aviation Pvt. Ltd. (appellant in O.S.A.No.252 of 2014) on 25.02.2010. The appellant-Companies have not paid the amounts as per the above notices within the stipulated time as per the provisions of the Companies Act. It is pertinent to note that the Company Petitions were presented by the respondent- Company before the Company Court on 05.10.2010 for winding-up of the appellant-Companies, after complying with the provisions of the Companies Act, i.e. after ex .....

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