Case Law Details
HIGH COURT OF MADRAS
Packmaster Containers (P.) Ltd.
Versus
Rayalaseema Commodities Ltd.
S. Tamilvanan, J.
C.P. NO.303 of 2010
C.A. NO.1782 of 2010
APRIL 26, 2012
JUDGMENT
1. The company petition has been filed under sections 433(e) and 434(1)(a) of the Companies Act, 1956, seeking winding up of the respondent-company under the provisions of the Companies Act.
2. The petitioner, M/s. Packmaster Containers P. Ltd., is a company registered under the Companies Act, 1956, having its registered office at Plot No. 7K-P2, KIADB Industrial Area, Bashettihalli, Doddaballapur, Bangalore-561 203. The respondent is M/s. Rayalaseema Commodities Ltd., company registered under the Companies Act having its registered office at New No. 3/1, Old No. 65/1, Amaravathi Nagar, 2nd Cross Street, Arumbakkam, Chennai-600 106.
3. The petitioner has stated that the authorised capital of the respondent-company is Rs. 8,50,00,000 divided into 85,00,000 equity shares of Rs. 10 each. The paid-up share capital of the respondent-company is Rs. 8,40,00,000. The main object for which the respondent-company was incorporated are stated in the memorandum and articles of association, which were filed along with the petition. The petitioner, private limited company is also engaged in the business of manufacturing packing materials. It is also stated that the petitioner was formerly known as M/s. Sudarshan Overseas Ltd. During the said period, the respondent-company from time to time have placed orders upon the petitioner-company and accordingly, supplies were made by the petitioner to the respondent on credit basis. According to the petitioner, as per various invoices, the respondent-company received supply of materials from May 26, 2009 to September 16, 2009, whereby the overdue payable by the respondent herein was Rs. 25,63,531 as on June 30, 2010. As per the terms of the agreement, interest was calculated at Rs. 3,68,286. In spite of the repeated request made by the petitioner, demanding to settle the dues, there was no response from the respondent-company.
4. It was also brought to the notice of the petitioner that the respondent-company is severally indebted to several creditors. Hence, on April 29, 2010, the petitioner issued legal notice calling upon the respondent to pay a sum of Rs. 21,16,822 as on April 29, 2010, within 21 days from the date of receipt of the notice issued under the Companies Act. However, the said notice was returned unserved. The said notice was sent to the earlier address, M/s. Sudarshan Overseas Ltd. After knowing the change of name of the respondent-company, on July 20, 2010, again the petitioner issued a fresh notice to the respondent’s present address, demanding a sum of Rs.25,63,531 with interest outstanding as on June 30, 2010, however, the said notice was also returned back to the petitioner with an endorsement not claimed with acknowledgment due.
5. In the aforesaid circumstances, the petitioner sent legal notice to the respondent-company by hand delivery on August 6, 2010, which was acknowledged by the managing director of the respondent-company, however, failed to comply with the demand made by the petitioner and there was also no reply from the respondent. As the respondent has not paid the amount due and payable to the petitioner and the petitioner reliably learnt that the respondent-company is indebted to so many creditors, find it proper to file this company petition, seeking winding up of the respondent-company.
6. In the company petition, after service of notice, the respondent has filed counter signed by the director of the respondent-company, wherein in paragraph number 3, the respondent has stated as follows :
“3…. it is submitted that it is true that the petitioner-company has been supplying as per the orders placed by the respondent-company for several years. It is submitted that in respect of the supplies made to the respondent-company from May 26, 2009 to September 16, 2009, the respondent was not in a position to pay the same since the entire industry and economy relating to the respondent business collapsed and this has led the respondent to face a temporary financial embarrassment. It is submitted further that the respondent is not liable to pay any interest whatsoever on the outstanding sums and the claim for interest of Rs. 3,68,286 is stoutly denied…”
7. Learned counsel appearing for the petitioner drew the attention of this court to the copy of the letter dated July 1, 2010, sent by the petitioner herein to the respondent, wherein the authorised signatory of the respondent-company has made an endorsement that we confirm and accept the balance and signed for Rayalaseema Commodities Ltd. (formerly Sudarshan Overseas Ltd). As per the endorsement made by the authorised signatory of the respondent-company, the amount due and payable as on March 31, 2010, by the respondent was Rs. 25,63,531.
8. Learned counsel appearing for the respondent has not disputed the confirmation and acceptance of the balance amount by the respondent on July 1, 2010 and further, in the counter itself, the director of the respondent-company has admitted that there was business transaction between the petitioner and the respondent, whereby the respondent had to pay amount for the period from May 26, 2009 to September 16, 2009, as stated by the petitioner herein and disputed only the interest claimed therein stating that the respondent need not pay any interest, being a business transaction, the respondent is not entitled to raise a defence that interest need not be paid and further on July 1, 2010, the respondent has admitted and confirmed the balance payable to the petitioner at Rs. 25,63,531. Hence, it is not open to the respondent to dispute the liability, having accepted the confirmation of balance amount due and payable by the respondent.
9. It cannot be denied that the respondent is estopped from raising any plea against the averments made in the counter and the confirmation of balance, for which supporting documents have been produced. The respondent has not disputed the genuineness of the supporting documents. In addition to the admission made by the respondent, the petitioner has produced various invoices-cum-delivery chalan for the supply of goods and materials to the respondent on various dates as stated in the petition and also produced statement of outstanding bills. Since the respondent has confirmed and accepted the balance amount payable to the petitioner at Rs. 25,63,531 as on March 31, 2010, the same has to be paid by the respondent with subsequent interest and costs, hence, I could find no legal defence raised by the respondent herein, as the petitioner has established the claim made in the company petition. Hence, the company petition and the company application are to be allowed.
10. Considering the company application in Company Application No. 1781 of 2010 in the company petition, the Official Liquidator of the High Court of Madras at Chennai is appointed as the provisional liquidator of the respondent-company to deal with all the assets including movable and immovable properties and to take custody of accounts, other papers, vouchers and all other documents, accordingly, Company Application No.1781 of 2010 is allowed.
11. On the aforesaid facts and circumstances, the petitioner is entitled to an order as prayed for. Accordingly, this company petition is allowed and order of winding up is passed, as per the provisions of the Companies Act. The official liquidator is appointed as the provisional liquidator and he is also directed to take charge of the assets and affairs of the respondent-company. The petitioner is directed to pay a sum of Rs. 10,000 (rupees ten thousand only) to the official liquidator for initial expenses. The ex-directors of the respondent-company are directed to file the statement of affairs within 21 days from the date of receipt of a copy of this order and hand over all the registers and records pertaining to the respondent-company without causing delay.
