TMI Blog2016 (12) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... e winding up petition is of no substance, wholly contrived, mere moonshine, a sham and not bonafide. On 27-5-2016, the respondent company was directed to file statement of affairs of the company. That has still not been filed. Thereafter vide order dated 16-9-2016 while deciding the application under Section 450 of the Act of 1956 the Official Liquidator attached to this court was appointed as provisional Liquidator of the respondent company with a direction to take possession of the assets, both movable and immovable, of the respondent company. The Official Liquidator was also authorised to exercise powers under section 457(1) of the Act of 1956. The respondent company was also directed to file statement of affairs of the company under pain of contempt. Even the said direction to file the state of affairs has again gone abegging. Thus the respondent company M/s. Shiv Mahima Ispat Private Limited is directed to be wound up. The Official Liquidator is appointed as the Liquidator of the respondent company under Section 448 of the 1956 Act. He shall take steps to take possession of the immovable and movable assets of the respondent company, if not so already done. The Directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 4,82,72,269/- would be paid through RTGS/ pay order upto 20-1-2013. That was however not done despite repeated entreaties by the petitioner. In the circumstances legal notice dated 18-1-2013 was dispatched by the petitioner through its counsel to the respondent company and its directors under Section 138 of the Negotiable Instruments Act, 1881 requiring it to make payment of the amount under the dishonoured cheque. Further a notice dated 23-1-2013 under Sections 433(e) (f), 434 and 439 of the Act of 1956 followed and was served at the respondent company's registered office. Yet the respondent company failed to pay the outstanding due debt to the petitioner. The petitioner in the circumstances appears to have filed a money suit for recovery of the due amount of ₹ 4,82,72,269/- before the Additional District Judge No.6, Jaipur. The case of the petitioner in the winding up petition subsequently filed is that the amount due and payable to it for goods supplied and still largely retained by the respondent company is an undisputed debt, which it was under a legal duty to pay but failed despite a statutory notice. This neglect to pay the due debt has rendered it d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat consequently the claim of the petitioner company for the debt of ₹ 4,82,72,269/- or any amount whatsoever under the dishonoured cheque No.025154 dated 3-1-2013 towards supply of 1208.1 MT HR Coils under invoices dated 25-12-2012 and 26-12-2012 is a bonafide dispute and would be more appropriately adjudicated on the basis of evidence in a regular trial before the court of Additional District Judge No.6, Jaipur in the petitioner's money suit. As such the winding up petition under Section 433 (e) (f), 434 and 439 of the Act of 1956 is a gross misuse of statutory provisions and which should not be countenanced by this court. In rejoinder, the petitioner has submitted that the entire defence of the respondent company is an afterthought, contrived, false, a sham and malafide. The dispute with regard to earlier transactions and amounts recoverable in respect thereof from the petitioner is as vague as it is baseless. No contemporaneous correspondence has been adverted to or filed in support of the said claims averred in the reply. And the dispute with regard to goods supplied under the purchase order dated 5-12-2012 being contrary to the specifications ordered, and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... published in the Times of India (English), Dainik Bhaskar (Hindi) Jaipur Edition and the Official Gazette. None from the public having interest in the matter has appeared to oppose the petition. In fact even counsel for the respondent company has not appeared. The case of the respondent company that the winding up petition has been filed as a pressure tactic to recover alleged debt which is seriously disputed bonafide on substantial grounds and entails misuse of the salutary winding up provisions of the Act of 1956 has been considered in detail and rejected vide order dated 22-4-2016 when the winding up petition was admitted. None has appeared for the respondent company to persuade the court to take a different view. From the facts of the case detailed in the order of admission of the winding up petition on 22-4-2016 it cannot be held that the petitioner- Company had not approached this Court with clean hands making the purpose of filing the winding up petition questionable and mala fide. I am of the considered view that in the facts of the case the winding up of the respondent company for its inability to pay its debt inter alia to the petitioner company would not be contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the company. That has still not been filed. Thereafter vide order dated 16-9-2016 while deciding the application under Section 450 of the Act of 1956 the Official Liquidator attached to this court was appointed as provisional Liquidator of the respondent company with a direction to take possession of the assets, both movable and immovable, of the respondent company. The Official Liquidator was also authorised to exercise powers under section 457(1) of the Act of 1956. The respondent company was also directed to file statement of affairs of the company under pain of contempt. Even the said direction to file the state of affairs has again gone abegging. In view of aforesaid facts the respondent company M/s. Shiv Mahima Ispat Private Limited is directed to be wound up. The Official Liquidator is appointed as the Liquidator of the respondent company under Section 448 of the 1956 Act. He shall take steps to take possession of the immovable and movable assets of the respondent company, if not so already done. The Directors of the respondent company are again directed to file statement of affairs of the respondent company before the Official Liquidator as statutorily required and als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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