Allowed

Tervakoski Oy v. M/S. Kedia Lamikote (India) Limited

Bombay HC3 Jul 2013CP/44/2012

Case brief

AI extract

What is this about?

The High Court allowed a company petition seeking the winding up of the respondent for failing to pay dues to the petitioner. The court found the company insolvent due to unpaid invoices for goods delivered without complaint and noted the company had ceased operations, deeming the case for winding up made out.

What did the court decide?

The petition for winding up of the respondent company was allowed in terms of the prayer clauses.

Tervakoski Oy Vs M/S. Kedia Lamikote (India) Limited — Company and Corporate | Bombay HC (2013)

CP44-12.doc

Sequeira

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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COMPANY PETITION NO. 44 OF 2012.

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Tervakoski OY .. Petitioner Vs

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M/s Kedia Lamikote (India) Limited. .. Respondent

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Mr.Darshan Mehta i/b M/s Dhruve Liladhar & Co., for petitioner. Mr.Ruchir Tolat a/w Ms Lara Jesani i/b M.Mulla Asso., for respondent.

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CORAM: N.M.JAMDAR, J. Wednesday 3 July, 2013

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P.C.:

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By this petition the petitioner seeks winding up of the respondent Company M/s.Kedia Lamikote (India) Limited.

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The respondent Company is registered under the Companies Act 1956 and has a share capital of Rs.4,00,00,000/- consisting of 40 lakh equity shares of Rs.10/- each.

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The respondent Company is in the business of laminators, coaters, processors, converters, importers and exporters and activities in respect of manufacturing, exporting of paper and paper board and its products. The petitioner carries on business of manufacturing, exporting of paper boards.

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CP44-12.doc

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The respondent Company approached the petitioner for supply of goods on credit pursuant to the purchase orders placed by the respondent Company. The petitioner from time to time sold, supplied and delivered the goods to the Company as per their requirements. Eight invoices were raised by the petitioner in respect of the supplies dated 29 October 2001, 17 November 2001, 1 December 2001, 15 December 2001, 3 – Invoices dated) 11 January 2002, 19 February 2002 totalling to amount of 102752 USD. The petitioner requested the respondent Company to pay the amount of 102752.25 USD on many occasions but the amount was not paid. The petitioner thereafter by advocate’s letter dated 8 October 2003 called upon the respondent Company to pay the outstanding amount. The respondent Company informed the petitioner that they have filed a reference to the Board for Industrial and Financial Reconstruction – BIFR under the provisions of SICA, and the same was registered. The petitioner thereafter filed an application before BIFR, on 30 October 2003 for impleadment. The BIFR by its order dated 3 November 2009 noted that the factory of respondent Company is closed since 2004-2005 and the Company is carrying on only trading activities. In view of that position the reference of the respondent Company was de-registered by the BIFR on 5 November 2009.

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The petitioner thereafter on 15 February 2010 issued a statutory notice under section 433 (e) and 434 of the Companies Act 1956. Thereafter the present petition came to be filed.

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The respondent Company appeared in the Company petition and filed their reply on 26 June 2012. The petition came up for admission on

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CP44-12.doc

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18 September 2012 and by way of detailed order the petition was admitted. It is also to be noted that at the time of admission of the petition, Court had called for balance-sheet of the Company and found that amount of Rs.44,95,409/-was shown to be due and payable to the petitioner. At the time of admitting the petition, the Court noted that admittedly the goods have been received from the Company and there is not a single letter written by respondent Company to the petitioner stating that goods supplied were defective. The defence of the respondent Company that papers were destroyed was not found to be bonafide.

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Thereafter the admission of the petition has been duly advertised and the learned counsel for the petitioner has placed on record an affidavit showing publication of notice of admission.

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When the matter was taken up for hearing today the learned counsel appearing for respondent Company stated that respondent Company does not wish to file a further affidavit as the earlier affidavit filed at the time of admission is a comprehensive affidavit. The learned counsel for the respondent Company candidly submitted that the respondent Company has ceased its operations and is not functioning as on today.

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The perusal of the petition and the correspondence annexed therein clearly shows that the goods were received by the respondent Company without making any complaint and the defence sought to be taken that goods are defective, is an after-thought as in no point of time earlier this fact was ever communicated by the respondent Company to the

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CP44-12.doc

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petitioner. It is thus clear that the respondent Company is unable to pay the dues of the petitioner. It is also therefore clear that the respondent Company is not commercially solvent. The learned counsel for the respondent has also acknowledged the fact that the respondent Company is not conducting its affairs and has ceased to function. All the procedural formalities after the admission of the petition have been carried out. Considering all the facts and circumstances, the case for winding up of the respondent – Company is made out. Accordingly the petition is allowed in terms of prayer clause (a) and (b).

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N.M.JAMDAR, J.

Tervakoski Oy v. M/S. Kedia Lamikote (India) Limited

Case brief

What is this about?

What did the court decide?

Tervakoski Oy v. M/S. Kedia Lamikote (India) Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

Coram

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