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2017 (1) TMI 1012 - BOMBAY HIGH COURT

2017 (1) TMI 1012 - BOMBAY HIGH COURT - TMI - Winding up petition - prayed for appointment of the Official Liquidator of all the assets, business, affairs, property, books of accounts etc. with all powers under the Companies Act, 1956 - Held that:- Since the respondent has failed to pay the admitted dues, the petitioner has made out a case for grant of interim relief in terms of prayer clause (d). However, it is made clear that the respondent shall be permitted to deal with or dispose of the ass .....

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e, and any resultant inadequacy of notice shall not invalidate such advertisement or notice and shall not constitute non-compliance with this direction or with the Companies (Court) Rules, 1959. - b). The company petition is made returnable after eight weeks. The petitioner shall deposit ₹ 10,000/- towards publication charges with the Prothonotary & Senior Master, under intimation to the Company Registrar, within two weeks from the date of admission, failing which the petition shall st .....

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luja for the Respondent. ORAL JUDGMENT:- 1. By this company petition, the petitioner seeks winding up of the respondent company and prays for appointment of the Official Liquidator of all the assets, business, affairs, property, books of accounts etc. with all powers under the Companies Act, 1956. 2. It is the case of the petitioner that the respondent company approached the petitioner for supply of Ready Mix Concrete. It is th case of the petitioner that during .....

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respondent issued a cheque in the sum of ₹ 3.00 lakh as part payment in favour of the petitioner. On 18th June, 2013, the respondent company issued another cheque of ₹ 3.00 lakh as part payment to the petitioner. On 31st August, 2013, the respondent company issued a cheque of ₹ 1.00 lakh as part payment. 4. It is the case of the petitioner that on 1st October, 2013, the petitioner addressed an e-mail to the respondent and called upon the respondent to pay the outstan .....

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to make payment. On 23rd October, 2013, the petitioner sent a reminder to the respondent to pay the outstanding amount. Even in the said e-mail, the amount erroneously mentioned as ₹ 10,70,000/- instead of ₹ 10,84,000/-. 5. The respondent sent a reply to the said e-mail on 23rd October, 2013. In the subject, it was mentioned the Outstanding balance of ₹ 10,70,000/-. The respondent informed the petitioner that the respondent would release some payment by Monday or Tue .....

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rther interest thereon under section 434(1)(a) of the Companies Act, 1956. 6. Though the said statutory notice was received by the respondent, there was no reply to the said notice by the respondent. The petitioner accordingly filed this company petition. According to the petitioner, the petitioner has to recover a sum of ₹ 14,63,421/- from the respondent as on the date of filing of the company petition. The respondent has filed affidavit in reply to this petition. R .....

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the respondent, the balance outstanding was ₹ 10,70,000/-. The respondent though agreed to make some payment on or before Monday or Tuesday of the said week and agreed to pay the balance amount probably in another 3 to 4 months, no payments were made by the respondent. He submits that since there was no reply to the statutory notice, presumption has to be drawn by this Court that the respondent was unable to pay its debts. 8. He also invited my attention to some of the averment .....

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ments made in paragraph 10 of the affidavit in reply, in which the respondent admitted that it had made payment for goods supplied which were upto the mark and as per the specification requisitioned by the respondent company. He submits that each and every defence raised by the respondent now raising an issue of alleged defective goods is after thought. 10. It is submitted that the respondent has already made payment of ₹ 7.00 lakh as and by way of part payment and while making .....

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7; 10,70,000/-, whereas in another e-mail the petitioner has claimed an amount of ₹ 10,84,000/-. He submits that since there is a difference in the claim made by the petitioner in the correspondence, on that ground alone, the petition shall be dismissed. 12. It is submitted by the learned counsel that the invoices which are annexed to the petition, were not received by the respondent. He also disputed the contents of such invoices. Learned counsel however, could not point out be .....

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of interest. 14. Insofar as the e-mail addressed by the respondent company is concerned, it is submitted that even the said e-mail indicates that the respondent had called upon the petitioner to supply the statement of account which were never supplied. 15. Mr.Khandeparkar, learned counsel for the petitioner in rejoinder invited my attention to the averment made in paragraph 10 of the company petition and reply of the respondent in paragraph 14 thereto. It is submitted that .....

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in particular paragraphs 8 and 11. He submits that even if according to the respondent the correct outstanding amount of the petitioner is ₹ 10,70,000.- and not ₹ 10,84,000/- since the amount involved is more than ₹ 500/-, the company petition cannot be dismissed on the ground of the alleged discrepancy in the amount claimed. 17. The respondent did not reply to the statutory notice and did not pay any amount, a presumption thus has to be drawn against the respondent .....

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was more than ₹ 500/-, this petition for winding up cannot be dismissed on the ground that there is difference in the amount claimed by the petitioner in the two e-mails. This Court has already taken such a view in case of Tata Finance Limited, Mumbai (supra), I am respectfully bound by the said judgment. There is thus no substance in this submission of the learned counsel for the respondent. 19. The respondent in the affidavit in reply admitted that the goods supplied by the p .....

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