M/S Omnitech Infosolutions Ltd. (CIN-L30007MH1990PLC055256) Vs M/S. Mukesh Textile Mills Ltd.

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

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APPEAL NO.16 OF 2016 IN

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COMPANY PETITION NO.518 OF 2014

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M/s.Omnitech Infosolutions Ltd...Appellant
vs.

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M/s.Streamline Shipping Company
Pvt.Ltd.

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...Respondent

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 WITH

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APPEAL NO.18 OF 2016 IN

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COMPANY PETITION NO.434 OF 2014 WITH
NOTICE OF MOTION (L) no.981 of 2015 WITH
APPEAL NO.19 OF 2016 IN

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COMPANY PETITION NO.499 OF 2014 WITH
NOTICE OF MOTION (L) No.982 of 2015 WITH
APPEAL NO.23 OF 2016 IN

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COMPANY PETITION NO.428 OF 2014 WITH
NOTICE OF MOTION (L) NO.978 OF 2015 WITH
APPEAL NO.26 OF 2016 IN

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COMPANY PETITION NO.366 OF 2014 WITH
NOTICE OF MOTION (L) No.980 of 2015 WITH
NOTICE OF MOTION (L) NO.979 OF 2015 IN
APPEAL NO.16 OF 2016.

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Mr.J.S.Kini a/w Mr.Suresh Dubey for the appellant in
all appeals

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Mr.Rakesh Pirpodia i/b RMP Legal for the respondent
in all appeals

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Mr.L.T.Satelkar for Official Liquidator

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CORAM : A.S.OKA, &
 A.A.SAYED,JJ.

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 DATE : JUNE 23, 2016

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P.C.:

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1Heard the learned counsel appearing for the
appellant-company and the learned counsel for the
respondent. The appellant company in these appeals
is the same. The challenge in these appeals is to
the orders passed by the learned Single Judge on 18th

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March 2015 on the winding up petitions filed by the
respondent in these appeals against the appellant.
By the impugned order, the company petitions were
allowed by directing that the appellant-company be
wound up under the orders of this Court. The
Official Liquidator was appointed as Liquidator.

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2The learned counsel for the appellant firstly
urged that the learned Single Judge has proceeded on
wrong footing that the reply to the winding up
petition was not filed. His second submission is
that the documents placed on record will show that
the financial position of the appellant-company has
considerably improved during the last two years.
Thirdly, he submitted that the application made by
the appellant to the consortium of banks for grant
of permission to pay 50% of the amount to the
petitioning creditors is still pending. He invited
our attention to clause (2) of the order dated 8th
May 2015 passed by the Division Bench of this Court
in these group of appeals. He tenders across the bar
a compilation of documents which is taken on record
and marked `X-1' for identification. It contains a
schedule of payment to be made to the petitioners in
Company Petitions. He submitted that notwithstanding
the fact that permission has not been granted by
the lead bank of consortium to the appellant to pay
the amount to the petitioning creditors, the
appellant is prepared to pay amounts in terms of the
schedule incorporated in the compilation marked `X-
1' for identification. He submitted that the
appellant-company is getting work and its financial

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condition has considerably improved. He stated that
the appellant-company is doing the work relating to
Aadhar Cards and therefore, no purpose will be
served by winding up the said company.

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3The learned counsel for the respondents
states that the schedule of the payment offered by
the appellant is not acceptable to the respondents.

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4We have considered the submissions. The facts
of the company petitions subject matter of these
appeals are more or less same. Only the amount of
debt is different in each case. Therefore, for the
sake of convenience, we are referring to the order
passed by the learned Single Judge in Company
Petition No.518 of 2014 which is the subject matter
of challenge in Appeal No.16 of 2016. The paragraph
8 of the said order reads thus :

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“8On 3rd February 2015, this Court was
informed that CDR Scheme has been approved
and that M/s.Axis Bank is the monitoring
agency. The petitioner in the above Petition
as well as the other Petitioners appearing in
Company Petition Nos.499 of 2014, 366 of
2014, 428 of 2014, 434 of 2014 and 544 of
2014 informed the Court that they are not
parties to the CDR scheme and are entitled in

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law to seek winding up of the Company.
However, this Court on 3rd February 2015
passed the following order:

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“The Company shall file its
Affidavit-in-Replyonorbefore
9.2.2015 and shall annex thereto all
the documents referred to and/or relied
upon therein. The Company undertakes to
forward a copy of the Affidavit to the
Advocate for the Petitioners on or
before 7.2.2015. M/s.Axis Bank/
Monitoring Agency shall remain present
before this Court on 9.2.2015 at 11.00
a.m. Stand over to 9.2.2015.”

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However, till date the Company has failed and
neglected to file any affidavit-in-reply to
the above petition.”

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5The contention of the learned counsel for the
appellant is that in fact a reply in terms of the
said order was filed and therefore, the learned
Single Judge has proceeded on an erroneous
assumption that the reply was not filed. If that was
the contention, the appellant should have moved the
learned Single Judge. However, that was not done.
Without going into that controversy, we have perused
the reply filed by the appellant of Shri Avinash
Pitale S/o Mr.Chandrakant Pitale. In paragraph 20 of
the reply filed in company petition No.518 of 2014,
the appellant accepted that the amount stated in
paragraph 20 of the reply was due and payable by the
appellant to the respondent (petitioning creditor).
All that the appellant has stated is that a request
was made to the respondent to provide some time for

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payment as the company was under severe economic
crunch. There is a reference in the affidavit to the
CDR documents executed by the company. Thus, the
liability of the appellant-company is clearly
admitted by it on oath in its reply to the Company
Petition. In this context, what is material is the
observations made by the learned Single Judge in
paragraphs 8 and 9 of the impugned Judgment. The

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learned Single Judge noted that before him a
statement was made that the offer made by the
appellant cannot be acted upon as M/s.Axix Bank has
informed the appellant that no payment can be made
to the respondents or unsecured creditors.
Therefore, the learned Single Judge proceeded to
record a finding that he was satisfied that the
appellant-company is unable to pay debts and
deserves to be wound up. Thus, there is absolutely
no ground to find fault with the impugned order
passed by the learned Single Judge.

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6The present appeals were lodged on 4th April
2014 which were placed for admission before the
Division Bench of this Court on 8th May 2015.
Paragraph 2 of the said order reads thus:

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“2In the meantime, we take on record the
copy of letter dated 6th May 2015 from the
Managing Director and CEO of the appellant-
company to Axis Bank Limited, which is the
lead bank in the consortium of the banks to
which the appellant has applied to pay 50% of
the amounts to the petitioning creditor

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within one month from the date of sanction.”

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7Even today, consortium of Banks has not
permitted the appellant to make any payment to the
respondents. Thus, from the date of filing of
winding up petitions of the year 2014, nothing has
been paid by the appellant to the petitioning
creditors.

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8We have perused the payment schedule offered by
the appellant which is a part of the compilation
tendered and marked as `X-1'. The offer of the
appellant is to pay 5% of the debt on every quarter
of a calendar year to the creditors starting from
October 2016. The offer provides that interest will
be paid on the outstanding amount only at the rate
of 4% p.a. Apart from the fact that the offer is
not at all attractive, considering the past conduct
of the appellant, the respondent is fully justified
in not accepting the said offer. Hence, we find
absolutely no merit in these appeals. Considering
the conduct of the appellant, it deserves no
sympathy. Accordingly, we dismiss the appeals.
Pending Notices of Motion do not survive and the
same are disposed of.
9At this stage, the learned counsel for the
appellant seeks continuation of ad-interim order
which is operative from May 2015. The said ad-
interim order will continue to operate for a period
of eight weeks from today.

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(A.A.SAYED,J.)

M/S Omnitech Infosolutions Ltd. (CIN-L30007MH1990PLC055256) v. M/S. Mukesh Textile Mills Ltd.

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M/S Omnitech Infosolutions Ltd. (CIN-L30007MH1990PLC055256) v. M/S. Mukesh Textile Mills Ltd.

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