1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.1214 OF 1999 MSTC Ltd. ..Petitioners. V/s. Shri Ishar Alloy Steels Ltd. ..Respondent. WITH COMPANY PETITION NO.649 OF 1999 IFGL Regractories Ltd. ..Petitioners. V/s. Shri Ishar Alloy Steels Ltd. ..Respondent. Mr.Kirit Mody a/w. O.Mohandas i/b. Little & Co. for Petitioners. Mr.K.G.S.Tripathi for Petitioners. Mr.C.D.Patel i/b. Vivek Sharma for respondent in both the Petitions. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 16, 2008. DATE : JANUARY 16, 2008. DATE : JANUARY 16, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. No reply has been filed by the Respondent to oppose any of these Petitions. 3. In so far as Company Petition No.1214 of 1999 is concerned, the same is founded on the assertion 2 that the Petitioners had sold, delivered and supplied the goods to the Respondent company from time to me as demanded by the Respondent company. At no point of time, the Respondent company raised any dispute regarding quantity, quality or price of the goods so supplied. The value of the goods supplied and outstanding dues as claimed by the Petitioners is to the extent of Rs.1,10,00,000/-(Rs.One Crore Ten Lakhs only). The Petitioners have claimed interest on the said amount, which according to them is the agreed interest at the rate of 18% per annum from the date of nonpayment of the dues. Assuming that the claim of the Petitioners towards interest is to be ignored for the present, the fact remains that the outstanding amount payable by the Respondent company to the Petitioners is far in excess of statutory amount, as mentioned earlier it is quantified at Rs.1,10,00,000/-(Rs.One Crore Ten Lakhs only). As the amount remained unpaid, the Petitioners issued statutory notice. Inspite of the statutory notice, the amount remained unpaid, which necessitate the Petitioner to file present Petition for winding up of the Respondent company. Inspite of service of the present Petition, the Respondents have not bothered to file any reply to controvert the assertions made in the petition. In that sense, the case made out by 3 the Petitioners has remained uncontroverted and conceded by the Respondent company. 4. During the course of hearing, the only argument canvassed on behalf of the Respondent company was that the BIFR proceedings in relation to the Respondent company were pending before the Delhi High Court. However, it is fairly accepted that although the Writ Petition filed by the Respondent company before the Delhi High Court in the year 2002 is pending in that Court against the decision of the BIFR, as also challenging the decision of the AAIFR in respect of the Respondent company, no stay of operation of the order passed by the said authority has been granted so far. If it is so, there is no inhibition in proceeding with the present Petition, as it will have to be assumed that the relief claimed by the Respondent company in BIFR proceedings has been denied to the Respondent company. 5. In so far as Company Petition No.649 of 1999 is concerned, that Petition is based on the claim of the Petitioners having sold, delivered and supplied goods to the Respondent company from time to time. According to the Petitioners, the total value of the goods sold, delivered and supplied to the Respondent 4 to the extent of Rs.1,92,251/-(Rs.One Lakh Ninety Two thousand Two hundred Fifty One only). In addition to the principal amount of value of goods, the Petitioners are also claiming interest accrued thereon at the rate of 20% per annum, which according to them is agreed rate of interest. Even in the present case, if we were to discard the claim for interest, the fact remains that the outstanding amount payable to the Petitioners even in this Petition is far exceeding the statutory amount. That has been quantified at Rs.1,92,251/- (Rs.One lakh ninety two thousand two hundred fifty one only). As a matter of fact, in response to the statutory notice given to the Respondents, the Respondents have sent reply, in which they have acknowledged the liability to pay the outstanding amount of Rs.1,92,251/-(Rs.One lakh ninety two thousand two hundred fifty one only) in its letter dated 2nd January, 1998. It is common ground that the Respondent company has not paid the said amount to the Petitioners so far. If it is so, it is a clear case of Respondent company of having failed and neglected to pay the outstanding dues. It will necessarily follow that the Respondent company is unable to pay its debt. 6. Having regard to the claim set up in the two 5 Petitions referred to above, it is noticed that the Respondent company has failed and neglected to pay the outstanding dues and has obviously unable to pay its debt. The Respondent company is pursuing remedy before the Delhi High Court claiming that the assets of the Respondent company have eroded and turned negative, that presupposes that the Respondent Company is unable to pay its debt. Whether the Respondent succeeds in proceedings before the Delhi High Court is a different matter, for the simple reason that there are already two decisions against the Respondent company passed by the Court of competent jurisdiction on that issue. 7. Taking over all view of the matter, therefore, both these Petitions ought to succeed. Accordingly, it is ordered that the Respondent company be wound up under the orders and directions of this Hon’ble Court. The Official Liquidator is appointed to take over the affairs, assets and properties of the Respondent company forthwith and exercise all powers under the Companies Act. 8. Both Petitions are disposed off on the above terms. 6 9. At this stage, counsel for the Respondent company seeks stay of operation of this Order to enable the Respondent company to take up the matter in appeal. That request being reasonable one is accepted. It is ordered that no effect be given to the Order passed today in both the Petitions for a period of four weeks from today. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)