Allowed

M/S Healthema Llc v. Healthema India Pvt. Ltd. Cin No. U74900PN2010PTC137993

Bombay HC16 Dec 2014CP/351/2013

Case brief

AI extract

What is this about?

The Bombay High Court allowed a company petition for the winding up of Healthema India Private Limited. Relying on a prior order and uncontroverted allegations that the company was commercially insolvent, the court appointed an Official Liquidator as Provisional Liquidator.

What did the court decide?

Winding up of Healthema India Pvt. Ltd. and appointment of Official Liquidator as Provisional Liquidator.

M/S Healthema Llc Vs Healthema India Pvt. Ltd. Cin No… — Company and Corporate | Bombay HC (2014)

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

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COMPANY PETITION NO. 351 OF 2013

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M/s. Healthema LLC … Petitioner Versus Healthema India Private Limited … Respondent

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Ms. Amrita Saldnha for the Petitioner. None for the Respondent.

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CORAM : S.J. KATHAWALLA, J. DATED : 16TH DECEMBER, 2014

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P.C.

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By the above Company Petition, the Petitioner seeks winding up of Healthema India Private Limited (the Company). The above Company Petition is taken up for hearing and final disposal.

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The above Company Petition was admitted and directed to be advertised by an order of this Court (Coram : G.S. Patel, J.) dated 1^st April, 2014. Paragraphs 1 to 6 of the said order dated 1^st April, 2014 are relevant and reproduced hereunder :

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“1. The petitioner claims an amount of Rs.20,08,000/-as due from Healthema India Pvt. Ltd. (“the Company”). According to the petitioner, this amount was paid by the petitioner on the Company’s behalf to Magarpatta Township Development and Construction Co. Ltd., (“Magarpatta Construction”) Megaspace, Solapur Bazar Road, Off. East Street,

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Pune 411 001 for allotment of premises to the Company.

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2. Pursuant to an application and letter of intent dated 26^th November 2010, Magarpatta Construction allotted premises to the Company subject to approval from the office of the Development Commissioner, Special Economic Zone (IT/ITES), Department of Commerce, Ministry of Commerce and Industry, Government of India. The lease deed for these premises was to be executed only after the approval was obtained.

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3. The Company’s application before the Special Economic Zone authority was rejected. Magarpatta Construction returned the amount of Rs. 20,08,000/to the Company, since the application for allotment was made by the Company and the amount, though paid by the petitioner, was paid on the Company’s behalf. This is undisputed.

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4. Mr. Jagmohan Singh (“Jag”) Grewal, Chairman and Managing Director of Respondent Company, appears in person. He says that the amount of Rs.20,08,000/- was intended to be used “as start-up expenses” of the Company and is thus fully accounted. The petitioner cannot asked for a return of this amount. However, he also admits with fairness and candour that the Company is commercially insolvent and has no income or funds. Mr. Grewal points to his affidavit in reply and its various annexures. These purport to show that the Company

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had to incur certain initial expenses. There is, however, nothing to show that the amount of Rs. 20,08,000/- advanced for the allotment of premises by Magarpatta Construction either constituted a part of these initial expenses or was not to be returned to the petitioner, should the Company receive the amount back from Magarpatta Construction upon a cancellation of the allotment.

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5. The petitioner and the Company share a history. There have been other legal proceedings between them. There was, apparently, at some point in time a commonality of interests, directorships and a bilateral commercial involvement. That, however, is not material for the purposes of present petition. Unless Mr. Grewal is able to affirmatively show that the amount paid by the petitioner on the Company’s behalf to Magarpatta Construction was, in the event of its return by Magarpatta Construction, not required to be returned to the petitioner, there is no defence to the petition. It is not enough to claim that, between them, the petitioner and the Company agreed that the Company would incur some non-refundable startup expenses to which the petitioner would contribute. In any case, I am unable to see how this amount can ever constitute a “start-up” expense. It is an amount paid by the petitioner on the Company’s behalf to a third party. The amount has been returned. It is therefore unutilized for the purpose for which it was given. The Company cannot claim that it

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has either spent the money elsewhere and that it is, for that reason, now not refundable.

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6. In my view, there is no substance to the submission made on behalf of the Company. As there is no defence, much less bona fide or substantial defence, the following order is passed.........”

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The admission of the above Petition was thereafter advertised. Affidavit proving publication dated 10^th June, 2014 is on record. Notice under Rule 28 of the Companies (Court) Rules, 1959 has been accepted by the Chairman and Managing Director of the Company, as can be seen from the affidavit of service filed by the Petitioner dated 12^th December, 2014. 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 1^st April, 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 clause (a) and (b), which are reproduced hereunder :

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“(a) that the said Respondent Company viz. M/s.

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Healthema India Pvt. Ltd., a company registered under the Companies Act, having its registered office at Wing B, (Part) Level 4, Tower VII, Magarpatta City, Magarpatta SEZ, Hadapsar, Pune – 411 013 be wound up ;

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(b) that the Official Liquidator be appointed as a Provisional Liquidator of the said company to take charge of all the assets, books of accounts and the properties of the said company, with all powers under the provisions of the Companies Act, 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.

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The above Company Petition is accordingly disposed of.

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(S.J. KATHAWALLA, J.)

M/S Healthema Llc v. Healthema India Pvt. Ltd. Cin No. U74900PN2010PTC137993

Case brief

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M/S Healthema Llc v. Healthema India Pvt. Ltd. Cin No. U74900PN2010PTC137993

Case brief

What is this about?

What did the court decide?

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