Allowed

M/S.Prime Lifestyle v. M/S.Elder Instruments Pvt.Ltd, Cin NO.U29120MH1993PTC074117

Bombay HC18 Dec 2014CP/348/2013

Case brief

AI extract

What is this about?

This order admits and orders the winding up of the respondent company on the ground of insolvency. The court held that the company's failures to pay debts and baseless defenses raised during correspondence prima facie established inability to pay debts.

What did the court decide?

The petition was allowed; the company is ordered to be wound up and an official liquidator appointed.

M/S.Prime Lifestyle Vs M/S.Elder Instruments Pvt.Ltd… — Company and Corporate | Bombay HC (2014)

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925-CP-348-2013

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

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COMPANY PETITION NO. 348 OF 2013

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M/s. Prime Lifestyle … Petitioner

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Versus

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M/s. Elder Instruments Private Limited … Respondent

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Mr. K.T. Kukreja i/b. Arvind Manghirmalani for the Petitioner. None for the Respondent.

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CORAM	: S.J. KATHAWALLA, J.
DATE	: 18 TH DECEMBER, 2014

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P.C.:

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By the above Company Petition, the Petitioner seeks winding up of M/s. Elder Instruments Private Limited (the Company) on the ground that the Company is unable to pay its debt to the Petitioner. The above Company Petition is taken up for hearing and final disposal.

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According to the Petitioner, the Company through its Directors namely Ms. Shalini Karan Kumar Saxena, Mr. Alok Jagdish Saxena and Mrs. Niti Alok Saxena had over the years maintained good business relations with the Petitioner. The said Company through its Directors placed orders with the Petitioners beginning with the Letter of Intent dated 14th May, 2009 and thereafter from time to time for purchase of goods.

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During the period May 2009 to 31st March, 2010, the Petitioner sold, supplied and delivered to the Company the goods in terms of the orders, as described in the delivery challans aggregating to Rs.

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1,36,03,640/. As against the said amount, the Company made payment from time to time 'on account' by post dated cheques to the extent of Rs.7,68,510/. According to the Petitioner, the Company checked/verified, found to be correct and unconditionally confirmed the said outstanding amount of Rs.1,28,35,136/- as on 31st March, 2010.

¶17

According to the Petitioner, the Company continued to place orders with the Petitioner beginning from April, 2010 and thereafter from time to time for purchase of goods. The Petitioner sold, supplied and delivered to the Company the goods in terms of the aforesaid orders as described in the delivery challans aggregating to Rs. 1,41,40,289.62 which together with the outstanding amount of Rs.1,28,35,136/aggregated to Rs.2,69,75,425/. The Company made payments from time to time 'on account' by postdated cheques and sometimes by RTGS to the extent of Rs.94,47,562/. According to the Petitioner, the Company checked, verified, found to be correct and unconditionally confirmed the balance outstanding of Rs.1,75,27,863/- as on 31st March, 2011, which also includes interest payable by the Company.

¶18

According to the Petitioner, the Company continued to place orders with the Petitioner beginning April, 2011 and thereafter, from time for purchase of goods. The Petitioner sold, supplied and delivered to the Company the goods in terms of the aforesaid orders as described in the delivery challans. The Company made payments from time to time 'on

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account' by postdated cheques and sometimes by RTGS to the Petitioner. According to the Petitioner, the Company checked, verified, found to be correct and unconditionally confirmed an outstanding of Rs.3,20,74,582.25 as on 31^st March, 2012.

¶21

The Company accepted the delivery of all the goods without any objection/protest and in token of such acceptance the said Company signed on the delivery challans and also put the rubber stamp (seal) of the Company. After receipt of the goods the Company did not lodge any complaint of any nature whatsoever either with regard to the quality or shortage in quantity. The particulars of the purchase orders, delivery challans and invoices are set out in the Petition. Since the Company at the time of making part payments did not give instructions to the Petitioner regarding the manner of appropriation of the same, the Petitioner has set out in the Petition how the amounts received from the Company from time to time have been appropriated by the Petitioner.

¶22

According to the Petitioner, in the meantime the Petitioner by their email dated 6th December, 2011 (Exhibit C, page 73 to the Petition), while informing the outstanding amount to the Company, requested the Company to find a way out to clear the outstanding amount. The Director of the Company Ms. Shalini Kumar Saxena by an email dated 6th December, 2011 (Exhibit D, page 74 to the Petition) replied to the said email of the Petitioner on the same day and agreed to make payment of

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Rs.40,00,000/- only, and expressed the financial inability of the Company to make payment to the extent of Rs.1,20,00,000/. The Petitioner by their letter dated 31st March, 2012 (Exhibit H, page 79 to the Petition) addressed to the Company had forwarded details of accounts for the last three years with a request to the Company to duly sign, seal and confirm the same with the Company's Income Tax PAN Number. It was categorically stated in the letter that, “The total outstanding in our books of your Company till 31st March, 2012 is INR 3,20,74,582.25 ( including TDS Certificate or TDS deducted amount of INR 7,520/)”. Since Mr. Sumit Jamad, General Manager (Finance) of the Company, failed to confirm the accounts as requested, the Petitioner by its email dated 23^rd April, 2012 (Exhibit E, page 76 to the Petition) called upon Mr. Jamad to forward the confirmation of accounts and TDS Certificate. Since the Petitioner did not receive any response from Mr. Jamad, the Petitioner by their email dated 24th April, 2012 (Exhibit F, page 77 to the Petition) addressed to Ms. Shalini Kumar Saxena, Director of the Company, informed her that the confirmation of the outstanding amount was not received, and the same was required urgently. The Director of the Company Mrs. Shalini Kumar by her email dated 24-04-2012 (Exhibit G page 78 of the Petition) sought reasons from the General Manager (Finance) of the Company for the delay in confirmation. The Company thereafter, issued its confirmation on a copy of the Petitioner's letter itself, which is at Exhibit H page 79 of the

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Petition. The Company therefore, confirmed that an amount of Rs.3,20,74,582.25 is due and payable as on 31st March, 2012.

¶27

According to the Petitioner, in the mean time the Petitioner by their email dated 17th April, 2012 (Exhibit I, page 85 of the Petition), requested the Company to let the Petitioner know about their payment schedule. The Company through its Director Mrs. Shalini Kumar by her email dated 17th April, 2012 (Exhibit J, Page 86 of the petition) informed the Petitioner as follows :

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“As told to you, we will release a good amount this month”

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According to the Petitioner, the Company thereafter, made certain payments from time to time 'on account' by post dated cheques or by RTGS. Since there were no instructions either written or otherwise for appropriation, the Petitioner appropriated the payments towards the earlier outstanding as per the particulars mentioned in paragraph 12 of the Petition.

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Thereafter, the Petitioner, by its emails dated 13th July, 2012, 26^th July,2012, 30^th July, 2012, 31^st July, 2012, 9^th August, 2012 and 4^th October, 2012, repeatedly requested the Company through its Director Ms. Shalini Kumar Saxena to discharge the outstanding amounts. The said emails are annexed as Exhibit K to Exhibit P at pages 87 to 93 of the Petition.

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According to the Petitioner, the Company did not respond to the

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said emails, but in the third week of October 2012, issued 62 cheques of Rs.1,00,000/each, the details of which are set out in paragraph No.14 of the Petition. Out of the said 62 cheques, 32 cheques were honoured upon being deposited and 30 cheques were not deposited as the Company asked the Petitioner to hold on to the same. Thus, total payment made by the Company 'on account' till 31st December, 2012 was Rs.1,27,00,002/, thereby leaving a balance amount of Rs.1,93,74,580.25.

¶34

According to the Petitioner, in the meantime the Petitioner by their email dated 3rd December, 2012 (Exhibit SSS, page 151 of the Petition) addressed to the Director of the Company Ms. Shalini Kumar, placed on record that since the Company had financial problems the Petitioner shall accept Rs.40,00,000/- every month from the Company towards its outstanding dues. The Petitioner by its email dated 4th April, 2012, addressed to Ms. Shalini Kumar Saxena, the Director of the Company (Exhibit TTT, page 152) recorded the financial difficulties faced by it in view of non-receipt of its outstanding dues from the Company and requested them to at least make payments in installments as earlier suggested. The Company received the said email, but did not reply to the same. The Petitioner from time to time repeatedly addressed emails to the Director of the Company Ms. Shalini Kumar and also to the Chairman of the Company Mr. Jagdish Saxena, most of which were not responded to by them. The said emails are annexed as Exhibits UUU, VVV, YYY,

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AAAA, BBBB, CCCC and DDDD to the Petition.

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Ultimately, the Director of the Company Ms. Shalini Kumar on 12^th February, 2013 addressed an email to the Petitioner (Exhibit EEEE, page 171 of the Petition), which reads thus :

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“Dear Mr. Rupani,

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Thank you, for your email. In continuation of your several smses, calls, and now email, we certainly confirm our intention to pay and prioritize your payment. Since you have been so so patient, request you to continue to do so. We will be paying you parts, Shalini Kumar”.

¶41

Thereafter, the Company instructed the Petitioner to deposit one cheque of Rs.1,00,000/- from the balance 30 cheques issued by the Company and not deposited by the Petitioner for want of instructions from the Company. According to the Petitioner, it waited patiently to deposit the balance 29 cheques, however since the validity period of the said cheques was about to expire, the Petitioner deposited the said 29 cheques for encashment. Out of the said 29 cheques, only one cheque of Rs.1,00,000/- was honoured and the balance 28 cheques were dishonoured and returned with the remarks, “Exceeds Arrangements”. Thereafter, the Petitioner received a sum of Rs.94,592/- through RTGS/NEFT from the Company, which amount was appropriated by the Petitioner as set out in Clause (d) of paragraph 31 of the Petition.

¶42

According to the Petitioner, it thereafter issued 10 statutory

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notices under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881, as amended, in respect of the cheques which were dishonoured. In the said notices, the Petitioner had informed the Company that the statutory notice under Section 433, 434 of the Companies Act, 1956, shall soon be forwarded to the Company. The Company made payments aggregating to Rs.28,00,000/- and thereafter, sent its reply dated 25th April, 2013 (Exhibit QQQQ page 234 of the Petition) to the Petitioner making allegations, which according to the Petitioner, are baseless and incorrect to the knowledge of the Company and a mere after thought. The Petitioner by their Advocate's reply letter dated 6th May, 2013 (Exhibit RRRR, page 237 of the Petition), responded and dealt with the said allegations made by the Company for the first time.

¶45

The Petitioner thereafter through its Advocate sent a statutory notice dated 6th May, 2013 (Exhibit SSSS page 244 of the Petition) to the Company wherein, after setting out the aforesaid facts, the Company was called upon to pay the outstanding amount of Rs.2,02,81,875/- to the Petitioner within 21 days from the receipt of the said notice. The Petitioner thereafter, on 12th June, 2013 filed the present Petition seeking winding up of the Company on the ground that the Company is commercially insolvent and is unable to pay its debts.

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After filing of the Petition, the Petitioner received from the

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Advocate for the Company its letter dated 13th June, 2013, which was in reply to the statutory notice dated 6th May, 2013. By its said reply the Company denied and disputed almost everything stated in the statutory notice. The Company in its Reply to the statutory notice inter alia alleged that the goods received by the Company from the Petitioner were defective and of substandard quality, the accounts contained certain discrepancies and the interest charged by the Petitioner was incorrect and exorbitant. As regards the confirmations given by the Company qua the payment due to the Petitioner, it was alleged in paragraphs 3, 4 and 5 of the reply to the statutory notice that it is false that the Company had given confirmation of accounts by signing and putting rubber stamp (seal) of the Company. It is the Petitioner who had dishonestly and fraudulently obtained blank letter heads of the Company probably by inducing an employee of the Company and have thereafter forged bogus signature and rubber stamp (seal) of the Company so as to make false document for substantiating their wrongful claim for payment/recovery in Court. The Company has in paragraph 7 of its reply also denied having received the letter dated 31^st March, 2012 (Exhibit H Page 79 of the Petition) and giving its confirmation thereon. The same allegation of obtaining blank letter heads from its employees and forging signatures and putting rubber stamps thereon, is repeated, forgetting that the confirmation is on the letter written by the Petitioner on its own letter head and the letter head of

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the Company is not used at all. Even the emails received by the Company from the Petitioner as well as sent to the Petitioner by the Directors of the Company were not admitted. The Petitioner therefore, by their letter dated 13^th June, 2013 denied and disputed the allegations made by the Company. Thereafter, the Company filed its Affidavit-in-Reply whereunder it has made allegations and raised defenses on lines similar to the allegations made and the defenses raised in the reply to the statutory notice dated 13th June, 2013. However, it is interesting to note that the Company has now not made even a whisper about the Petitioner's having induced its employees and after taking blank letter heads of the Company from them, having forged and fabricated documents for being used in Court. The Petitioner has filed its rejoinder, to which the Company has filed its sur-rejoinder and the Petitioner has again filed its sur-surrejoinder.

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On 29th September, 2014, the learned Advocates for the Parties sought time to settle the matter. In view thereof, the Petition was adjourned to 9th October, 2014. On 9th October, 2014, the Parties again sought time to settle the matter. The Petition was therefore, adjourned to 13th October, 2014. On 13th October, 2014, the learned Advocate for the Respondent informed the Court that in view of certain conflict of interest having arisen in the matter, they be allowed to seek discharge. In view thereof, the following Order was passed :

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“The learned Advocate for the Respondent states that in view of certain conflict of interest having arisen in the matter, they are seeking discharge and have also informed the Directors of the Company that they shall be seeking discharge in the matter. In view thereof, the Advocates for the Respondent are granted discharge from appearing for the Respondent in the above Company Petition. A copy of this order shall be forthwith forwarded to the Respondent by the Advocates who have just been discharged. Stand over to 30-10-2014”.

¶56

When the matter was called out on 30^th October, 2014, Advocate Vishal Kanade instructed by M/s. Joy Legal Consultants (former Advocates for the Company) informed the Court that pursuant to the direction given to them vide Order dated 13^th October, 2014, they tried to serve a copy of the Order passed by this Court at two of the Offices of the Company. However, both the Offices have refused to accept service of the same. Affidavits in this regard have also been filed before the Court. Mr. Kanade further informed the Court that some time before the matter was called out for hearing, the Director of the Company Mrs. Shalini Kumar Saxena has informed M/s. Joy Legal Consultants by an email that she is not concerned with any matters of the Company.

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After recording the above facts, the above Company Petition was admitted and directed to be advertised by an order of this Court dated 31^st October, 2014. Paragraphs 19 to 22 of the said order dated 31^st October, 2014 are relevant and reproduced hereunder :

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“19. Since the Company Petition is filed as far back as on 12th June, 2013 and is repeatedly adjourned on some ground or the other, I have proceeded with the hearing of the Admission of the Petition. The Company has in its reply to the statutory notice made very serious allegations against the Petitioner that the confirmations produced by the Petitioner are forged and fabricated after obtaining the letter heads of the Company by inducing its workers. This allegation is completely belied by the following facts: (i) The Petitioner had by its letter dated 31st March, 2012 addressed to the Company (Exhibit-H pages 79-84 of the Petition) attached details of the accounts of the Company as shown in the books of accounts of the Petitioner on 31st March, 2012 and had after recording that the total outstanding in the books of the Petitioner payable by the Company till 31st March, 2012 is Rs.3,20,74,582.25 requested the Company to confirm the statement attached to the said letter. Since the Company delayed in responding to the said letter, the Petitioner by its email dated 24th April, 2012 (Exhibit-F page 77 of the Petition) requested the Director of the Company, Mrs. Shalini Kumar Saxena to look into the matter. In response, Mrs. Shalini Kumar Saxena, Director of the Company by her email dated 24th April, 2012, inquired from Mr. Sumid Jamad, General Manager (Finance) of the Company by texting the following message :

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“Sumit ?? Why such a long delay ??”

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(ii) After the Director forwarded the above email to Mr. Jamad, the Company forwarded its confirmation to the Petitioner inter alia confirming that the total outstanding in the books of Company till 31st March, 2012 is Rs.3,20,74,582.25 (Exhibit H page 78 of the Petition).

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(iii) The Company in its reply to the statutory notice made the above false and reckless allegations of forgery/fabrication in such haste that it not only did not take into account the above sequence of events, but also failed to realise that the letter head used was of the Petitioner and not of the Company and the question therefore of obtaining letter heads by inducing workmen of the Company and thereafter preparing documents through forgery would never arise.

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(iv) Interestingly in the Affidavit in Reply filed by the Company, the Company has deemed fit not to make even a whisper of the aforestated allegations of the Petitioner obtaining blank letter heads from its workers and by committing forgery, preparing documents for being used against the Company in Court proceedings.

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(v) The above facts clearly establish that the Company has in its reply to the statutory notice made allegations of fraud and forgery against the Plaintiff knowing the same to be false.

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20. The Company thereafter filed its affidavit-in-reply

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to the Company Petition in which it has denied and disputed almost all that is stated in the Petition. The Company has alleged that the goods delivered by the Petitioner were defective and of substandard quality. There are discrepancies in the accounts; the signatures on the delivery challans are not of the personnel specifically authorised by the Company to receive and accept the goods; the rubber stamp on the delivery challan clearly stated that the same was subject to verification; the goods were delivered at an incorrect address, the appropriation of the payments made by the Company is incorrect, the rubber stamp of the Company on the confirmations was in routine course of business and does not amount to acceptance of liability; and no person from the Accounts Department had verified the authenticity of the accounts nor was there any audit conducted.

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21. The above denials/allegations on the part of the Company completely lack bona fides in view of what is already stated hereinabove and again pointed out hereunder:

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(i) The Company has in its Affidavit in Reply relied only upon one email dated 11th October, 2011, purportedly signed by the Director of the Company to the Petitioner, alleging that the packing of a particular consignment was bad. The Petitioner has pointed out that the said email is sent at an incorrect address and not received by the Petitioner. In any event, there was no follow up thereafter and in fact as

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pointed out in the Petition and hereinafter, the very same Director has thereafter repeatedly promised to make payments to the Petitioner without raising any grievance which are now sought to be raised by the Company.

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(ii) The Company has thereafter in its sur-rejoinder annexed two purchase orders and two delivery challans and has alleged that in one case the goods supplied by the Petitioner were not as per the purchase order and in the other, the goods were sent by the Petitioner at an incorrect address. The said invoices and purchase order pertain to the period August, 2011 to September, 2011. The Company has not produced a single letter addressed to the Petitioner recording any such grievance. The Company has at the sur-rejoinder stage tried to rely on its internal correspondence purportedly carried out during the period 1st October, 2011, to 16^th January, 2012, which admittedly was not forwarded to the Petitioner. The allegation now made that the Petitioner was informed about the grievances / complaints set out in the internal correspondence cannot be accepted, more so when according to the Company when the packaging was of poor quality, they had immediately sent an email to the Company informing them about the same. In any event, as set out in the Petition and even hereunder the Director of the Company has upto February 2013, repeatedly promised to make payments and has also assured

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the Petitioner of its bona fide intention to pay the dues of the Petitioner without raising any grievance whatsoever against the Petitioner in respect of the goods supplied by them or in respect of the amount due and payable by the Company to the Petitioner. (iii) On 6th December, 2011 (Exhibit-C page 73 of the Petition), the Petitioner requested the Director of the Company to pay the outstanding dues of the Petitioner.

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(iv) On 6th December, 2011 (Exhibit-D page 75 of the Petition), the Director of the Company by her email inter alia stated that, “ We discussed 40 lacs only … not old + new,... we unfortunately cannot give 1.20 cr. … I am sure you too will understand the same. We also agreed 90 to be 110 – 120 days”.

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(v) By a letter dated 31st March, 2012 (Exhibit H page 79 of the Petition), the Petitioner forwarded to the General Manager (Finance) of the Company the details of accounts as standing in the books of accounts of the Petitioner till 31st March, 2012 and sought his confirmation. It was categorically mentioned in the said letter that, “The total outstanding in our books of your company till 31st March, 2012 is INR 3,20,74,582.25 (including TDS certificate or TDS deducted amount of INR 7,520.00)”

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(vi) On 23rd April, 2012 (Exhibit E Page 76 of the Petition), the Petitioner reminded the General Manager (Finance) of the Company that the

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Petitioner was waiting for the confirmation of accounts and the TDS Certificates.

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(vii) The Petitioner by its email dated 24th April, 2012 (Exhibit F page 77 of the Petition) addressed to the Director of the Company recorded that they have not received the ledger accounts despite requests from the Company and that she should look into the matter and oblige.

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(viii) The Director of the Company by her email dated 24th April, 2012 (Exhibit-G page 78 of the Petition) immediately enquired from the General Manager (Finance) of the Company as follows: “Sumit ?? Why such a long delay ??”.

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(ix) Thereafter the Company gave its confirmation on the letter sent by the Petitioner itself dated 31st March, 2012 inter alia confirming that as on 31st March, 2012, INR 3,20,74,582.25 (including TDS Certificate or TDS deducted amount of INR 7,520=00) is due and payable by the Company to the Petitioner. The Company also confirmed the balance as on 31st March, 2010 and 31st March, 2011.

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(x) The Petitioner by its email dated 17th April, 2012 (Exhibit I page 85 of the Petition) addressed to the Director of the Company/General Manager (Finance) requested them to give a payment schedule of the Company. In response, the Director of the Company by her email dated 17th April, 2012 (Exhibit J page 86 of the Petition) informed the Petitioner viz. “As told to you, we will release a good amount this

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month”.

(xi) The Company thereafter made certain payments. The Petitioner again by its emails dated 13th July, 2012, 26th July, 2012, 30th July, 2012, 31st July, 2012, 9^th August, 2012, 4th October, 2012, (Exhibits K to P at pages 87 to 93 of the Petition) repeatedly requested the Company through its Director Mrs. Shalini Kumar Saxena to discharge the outstanding amounts. Though the Company did not respond to the said emails, in the third week of October, 2012, the Company issued 62 cheques of Rs. 1,00,000/each. Out of the said amount of Rs. 62 lakhs, 32 cheques were honoured and 30 cheques were not deposited by the Petitioner in view of the instructions received from the Company to that effect. The balance payable as on 31^st December, 2012, was Rs. 1,93,74,580.25.

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(xii) The Petitioner by its email dated 3rd December, 2012 (Exhibit SSS at page 151 of the Petition) addressed to the Director of the Company placed on record that since the Company had financial problems the Petitioner had agreed to accept Rs. 40 lacs per month from the Company towards its outstanding dues. A similar email was forwarded by the Petitioner to the Company on 4th December, 2012 (Exhibit TTT at page 152 of the Petition). Again emails were repeatedly addressed to the Director of the Company Ms. Shalini Kumar Saxena and also to the Chairman of the Company Mr.Jagdish Saxena,

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most of which were not responded to by them. The said emails are annexed as Exhibits UUU, VVV, YYY, AAAA, BBBB, CCCC and DDDD to the Petition.

¶105

(xiii) On 12th February, 2013, the Director of the Company, Ms. Shalini Kumar Saxena, addressed an email to the Petitioner which reads thus :

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“Dear Mr. Rupani, Thank you, for your email. In continuation of your several smses, calls, and now email, we certainly confirm our intention to pay and prioritize your payment. Since you have been so so patient, request you to continue to do so. We will be paying you parts, Shalini Kumar”.

¶107

(xiv) Thereafter the Company requested the Petitioner to deposit one cheque of Rs.1,00,000/from the balance 30 cheques, which upon deposit was dishonored.

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(xv) Since the validity period of the said 29 cheques was about to expire, the Petitioner deposited the said 29 cheques, out of which only one cheque was honoured and 28 cheques were dishonoured and returned with the remarks “exceeds arrangement”. Thereafter the Company paid an amount of Rs. 94,592/- to the Petitioner through RTGS/NEFT.

¶109

(xvi) The Petitioner thereafter issued notices to the Company under Section 138 of the Negotiable Instruments Act, 1881, in respect of the dishonoured cheques.Thereafter the Company made part payment of Rs. 28 lakhs and instead of making further payments sent a letter dated 25th April, 2013

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(Exhibit QQQQ to the Petition) making several allegations therein which were denied and disputed by the Petitioner by its letter dated 6th May, 2013. (xvii) The Petitioner thereafter issued a statutory notice dated 6th May, 2013 (Exhibit SSSS at page 244 of the petition) to the Company and filed the present Petition.

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22. The aforestated facts totally belie the defences now sought to be raised by the Company that the goods were bad and were of poor quality or that there are several discrepancies in the accounts or that they have not accepted their liability to make payments. I am therefore, prima facie satisfied that the Company has failed to pay the dues of the Petitioner and in order to avoid making payments to the Petitioner of its legitimate dues has raised the aforestated defenses which are baseless, incorrect to the knowledge of the Company and its Directors and a mere afterthought. As can be seen from the correspondence mentioned hereinabove, the Company has repeatedly expressed its difficulties in making payments to the Petitioner. Again, from the manner in which the Company has made part payments to the Petitioner from time to time, I am prima facie satisfied that the Company is unable to pay its debts and the Company Petition deserves to be admitted and advertised. Hence, the following Order :”

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Pursuant to the said order dated 31^st October, 2014, the above Company Petition was advertised and the Affidavit proving publication dated 9^th December, 2014 is on record. Notice under Rule 28 of the Companies (Court) Rules, 1959, which was sought to be served on the Company is returned with the remark 'Left', as can be seen from the service report dated 17^th November, 2014 filed by the Section Officer, Company Department. Since the Notice was sought to be served at the registered address of the Company, which address on that day was shown as the Registered Office of the Company in the record of the Registrar of Companies, the said Notice is deemed to have been served on the Company, though the same has been returned with the remark 'Left'. Even at this stage, none appear for the Company. No Affidavit opposing the Petition has been filed by the Company. All the contentions of the Petitioner in the Petition have therefore remained uncontroverted and there is no reason why the allegations / submissions made by the Petitioner in the Company Petition should not be accepted..

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For the reasons set out in the order dated 31^st October, 2014 and herein, I am satisfied that the Company is unable to pay its debts and deserves to be wound up. The above Company Petition is, therefore, allowed in terms of prayer clauses (a) and (b), which are reproduced hereunder :

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“(a) That the said Company i.e. M/s. Elder

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Instruments Private Limited, having its registered office situate at 604, 6^th floor, Morya Landmark II, Off New Link Road, Andheri (W), Mumbai 400 053, Maharashtra be ordered to be wound up ;

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(b) That an Official Liquidator be appointed. Liquidator of the said Company with necessary powers under the provisions of the Companies Act of 1956”.

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The Official Liquidator to forthwith act on an ordinary copy of this order, duly authenticated by the learned Associate of this Court without waiting for any further notification from this Court or from any other authority. The learned Advocate for the Petitioner states that the Company is now doing business under a changed name and is not allowing anyone to enter the premises of the Company. The Company has also refused to accept service of letters forwarded by their own Advocates. In view thereof, in the event of the Official Liquidator or his representative facing any resistance in implementing this order the Senior Inspector of the local police station shall render all the necessary assistance required by the office of the Official Liquidator to comply with this order.

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The above Company Petition as well as Application are

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( S.J.KATHAWALLA, J. )

M/S.Prime Lifestyle v. M/S.Elder Instruments Pvt.Ltd, Cin NO.U29120MH1993PTC074117

Case brief

What is this about?

What did the court decide?

M/S.Prime Lifestyle v. M/S.Elder Instruments Pvt.Ltd, Cin NO.U29120MH1993PTC074117

Case brief

What is this about?

What did the court decide?

What the court decided

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