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M/S. Prankster Inn Pvt.Ltd v. Anytime India Fitness Private Limited - U92410MH2009PTC191245

Bombay HC25 Jun 2014CP/309/2012

Case brief

AI extract

What is this about?

The High Court, Bombay, hearing an application under Company Petition No. 309 of 2012, disposed of the petition seeking winding up of the respondent company. Based on uncontradicted facts showing non-payment of dues and dilapidated premises, the Court found the company commercially insolvent.

What did the court decide?

The respondent company is ordered to be wound up, and the Official Liquidator, High Court Bombay, is appointed as liquidator.

M/S. Prankster Inn Pvt.Ltd Vs Anytime India Fitness… — Company and Corporate | Bombay HC (2014)

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999-CP-309-2012

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

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COMPANY PETITION NO. 309 OF 2012

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M/s. Prankster Inn Private Limited … Petitioner Versus Anytime India Fitness Private Limited … Respondent

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Ms. Neha Prashant i/b. ALMT Legal for Petitioner

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None for Respondent

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CORAM: S.J. KATHAWALLA, J. DATE: 25TH JUNE, 2014

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P.C.:

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By this Petition, the Petitioner seeks winding up of Anytime

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India Fitness Private Limited (the Company).

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The Company Petition is for hearing and final disposal

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According to the Petitioner, the Company is in the business

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of conducting fitness related activities. The Petitioner and the Company entered into an agreement on 31^st December, 2010 whereunder the Company was to carry on business of a gym, fitness centre, spa, health cafe and other allied services at the premises of the Petitioner (the said premises) and the Company was to pay to the Petitioner 6.5.% of the gross revenue generated from the business conducted subject to a

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minimum amount of Rs.5,50,000/- from 1^st October, 2010.

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Since the Company did not pay the minimum monthly guaranteed amount from October-2010 and did not pay any taxes and maintenance charges which were payable under the agreement, the Petitioner by its letter dated 29^th April, 2011 called upon the Company to pay the outstanding dues and terminated the agreement. On or about 24^th May, 2011, the Company vacated the said premises. However, upon inspection of the said premises by the representatives of the Petitioner, it was discovered that the Company had left the said premises in a dilapidated condition and the said premises had been rendered unuseable.

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The Petitioner issued a statutory notice through their

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Advocate dated 28^th June, 2011, calling upon the Company to pay Rs.64,34,386/- being the outstanding amount payable under the terms of the agreement alongwith interest at the rate of 18% per annum from the due date of payment until realization. The Company failed to respond to the said statutory notice.

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The Petitioner therefore filed the present Petition. The notice of the Petition was received back with the remark 'closed'. By

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3 999-CP-309-2012

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order passed on 3^rd October, 2012 the office was directed to examine whether this would be treated as a good service. On 6^th December, 2012 the office has placed a report on record stating that the notice will have to be treated as good service.

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The above Company Petition was thereafter taken up for Admission by this Court (Coram : N.M.Jamdar, J.) when this Court by its reasoned order dated 16^th January, 2013 reached a prima facie finding that the Company is unable to pay the legitimate dues of the Petitioner and, therefore, the Company is not commercially solvent.

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Paragraphs 8 and 9 of the order passed by this Court dated 16^th January, 2013 are reproduced hereunder for ready reference :

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8. I have heard the learned counsel for the

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petitioner and gone through the copy of the petition and annexures thereto. The agreement which is annexed to the petition places responsibility on the respondent company to pay 6.5% of the gross revenue subject to minimum of Rs. 5,50,000/- per month. The agreement also obliges the respondent to pay all the taxes and maintenance charges etc. as specified in clause 6.1.3. of the

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agreement.

9. The notice issued by the petitioner has been

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unanswered. None has appeared to oppose the admission of the petition. From the material placed on record, it appears that the respondent company

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is unable to pay the legitimate dues of the petitioner and therefore it appears that the respondent company is not commercially solvent. Prima facie case for admission of the petition is made out.”

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The Company Petition was therefore admitted and directed to be advertised. The Admission of the Petition is accordingly advertised. Notice under Rule 28 of the Companies (Courts) Rules, 1959 is also served on the Company. The same is returned with the remark 'left'. Since the said notice is served at the registered address of the Company and the said address is shown in the records of the Registrar of Companies as the registered office of the Company till date, the said notice is deemed to have been served on the Company. The Company even at this stage has not come forward to make payments to the Petitioner as claimed or to oppose/contest the Company Petition. The allegations/submissions made in the above Company Petition filed by the

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Petitioner have therefore remained uncontroverted. I am therefore satisfied that the Company is unable to pay its debts and is commercially insolvent. The Company deserves to be wound up. The Company is therefore ordered to be wound up and the Official Liquidator, High Court Bombay is appointed as Liquidator of the Company with all necessary powers under the provisions of the Companies Act, 1956. The Official Liquidator is directed to take charge of the records/books as well as possession of the movable and immovable properties of the Company without waiting for any notification in the matter. The Company Petition is accordingly disposed of.

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( S.J.KATHAWALLA, J. )

M/S. Prankster Inn Pvt.Ltd v. Anytime India Fitness Private Limited - U92410MH2009PTC191245

Case brief

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M/S. Prankster Inn Pvt.Ltd v. Anytime India Fitness Private Limited - U92410MH2009PTC191245

Case brief

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What did the court decide?

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