HIGH COURT OF KARNATAKA
Aakarsh Industries (P.) Ltd.
Shakambari Fashions (P.) Ltd.
L. NARAYANA SWAMY, J.
CO. PETITION NO. 9 OF 2010
DECEMBER 4, 2012
1. This petition is filed under section 433(e) of the Companies Act and a prayer has been made for winding up the respondent company and to appoint the official liquidator.
2. The petitioner company is incorporated under the Companies Act having its registered office at Langford Road, Bangalore for the purpose of jurisdiction. The respondent company is also having its registered office at Bangalore.
3. The petitioner company is carrying on the business of making labels etc., as per customers’ specification. It is the case of the petitioner that petitioner has delivered to respondent the goods worth Rs. 1045,671 in response to the request made on behalf of the respondent. The goods have been accepted but the value has not been paid to the petitioner. The details of the transaction are produced as per Annexure-E to the petition. The petitioner has also produced ledger account from 1-4-2008 to 31-3-2009 as per Annexure-F in order to fortify their claims. Despite repeated calling on the respondent to make payment, the respondent has not only made false promises but prolonged the payment on one pretext or the other. Ultimately the respondent had issued three cheques for Rs. 3 lakhs the same have been dishonoured for which criminal cases have been filed for the offence punishable under section 138 of N I Act.
4. A statutory notice was issued on 24.9.2009 which has been served.
5. The respondent made appearance and made promise to the petitioner by way of memo dated 25-5-2010 reporting payment of Rs. 4 lakhs through demand draft towards partial claim and further had agreed to pay remaining amount of Rs. 6,15,671 on 15-7-2010 towards full and final settlement. Further on the basis of memo filed on behalf of the respondent on 26.5.2010 wherein both the petitioner and respondent agreed to settle the dispute and in terms of the same, the respondent had issued cheque for Rs. 3 lakhs vide cheque No.685247 dated 30-6-2010 and another cheque for Rs.3,50,000 through cheque No.685248 dated 21-7-2010. In view of the joint memo filed, the petition was disposed of by the order dated 26-5-2010.
6. The petitioner filed C A No.700/2010 with a prayer to reopen the case since the cheques issued by the respondent were dishonoured. This C A No.700/2010 was allowed and company petition was restored to file on 25-2-2011 and the matter was posted for admission. This Court by the order dated 1-7-2011 admitted the matter and petition was advertised in The Hindu fixing the date of hearing on 29-7-2011. On the said date, the matter was posted but not reached. Again on number of occasions, the matter was posted.
7. Today when the matter has taken up, none appears for the respondent. It is brought to my notice that the respondent’s counsel has filed memo for retirement along with the acknowledgement for having sent (sic) the memo for retirement. In view of the circumstances narrated hereinabove, the memo for retirement is not accepted and it is rejected.
8. I have heard the learned counsel for the petitioner. I have gone through the papers and the previous orders passed by this Court. It is found from the order sheet that the respondent himself has admitted the debt and he filed memo and further his memo again reflected in the joint memo filed and based on the post dated cheques issued in terms of the memo/joint memo, the petition was closed. The post dated cheques came to be dishonoured.
9. Hence, it is a fit case to allow the petition. Accordingly, the petition is allowed. The respondent company is ordered to be wound up. The petitioner is directed to communicate the order to the Registrar of Companies within a period of 15 days from the date of receipt of copy of this order. The Official Liquidator is appointed. To meet the initial expenses to initiate winding up proceedings, the petitioner is directed to deposit a sum of Rs. 15,000 to the Official Liquidator within a period of four weeks from the date of receipt of copy of this order.