THE HON'BLE MR JUSTICE G.V.SEETHAPATHY COMPANY PETITION No :161 of 2009 DATED:11-08-2010 ORDER: This petition is filed under Sections 433 (e) & (f) and 439 (c) of the Companies Act, 1956 (for brevity, ‘the Act’) r/w Rule 95 of the Companies (Court) Rules, 1959, seeking a direction that the respondent company- Vimben Systems Private Limited, be wound up under the provisions of the Act. 2. Notices were issued to the respondent, however returned unserved and substituted service by way of publication in newspapers was ordered. Accordingly, publication of notice was made and the respondent did not appear before the Court and hence set ex parte. The Company Petition was admitted on 19-01-2010 and admission of the petition was directed to be published in ‘Business Standard’ English daily and ‘Andhra Jyothi’ Telugu daily newspapers of local editions. Publication was accordingly effected and the respondent did not appear before the Court either in person or through counsel though his name was also printed in the cause list. Respondent was set ex parte. Petitioner company filed affidavit of one Rajamohan Gandhamaneni, who is the Special Attorney of the petitioner company, in lieu of the chief examination. Exs.P1 to P8 are marked. 3. P.W.1 was present. As the affidavit of P.W.1 is filed in lieu of the chief examination, recording of oral evidence of P.W.1 is dispensed with. 4. According to the petitioner, they are engaged in the business of Software/Storage products and the respondent approached them for supply of hardware equipment and maintenance service. Pursuant to the purchase orders placed with it by the respondent, petitioner company supplied the material sought by the respondent company. 5. Ex.P1 is the copy of the Special Attorney in favour of P.W.1 by the petitioner company. Ex.P2 is the purchase order, invoice and credit memos. As per the running account maintained by the petitioner company, a sum of Rs.1,15,331.92ps equivalent to a sum of Rs.56,51,264/- was due from the respondent company. Petitioner demanded payment of the said amount through e-mail-Ex.P3 attaching the Statement of Account. Respondent gave a reply e-mail on 13-09- 2006 under Ex.P4 and subsequently, sent another e- mail on 18-09-2006-Ex.P5 assuring the petitioner that the amount will be remitted by 26th or 27th of September, 2006. Petitioner alleges that in spite of the same, respondent failed to discharge the liability. Petitioner got issued a statutory notice-Ex.P6 on 23-01- 2008 calling upon the respondent to pay the amount. Respondent gave a reply-Ex.P7 stating that they would meet the petitioner and discuss the issue. When the petitioner sent an e-mail-Ex.P8 inviting the respondent for discussion there was no response from the respondent. Petitioner, therefore, filed the present petition on the ground that the respondent is unable to discharge its liability and neglected to pay the amount due and therefore rendered itself liable to be wound up under the provisions of the Act. 6. P.W.1 in his affidavit has sworn to the above facts. The chief affidavit of P.W.1 coupled with Exs.P1 to P8 established the claim of the petitioner that in spite of admitting the liability, respondent has either neglected to pay or is unable to the pay amount due and therefore rendered itself liable to be wound up under the provisions of the Act. In the circumstances, as the material on record establishes that the respondent company in spite of admitting its liability has failed to discharge the liability and is unable to pay its debts, it is considered just and equitable that the respondent company shall be wound up. The respondent company is directed to be wound up under Sections 433 (e) & (f) and 439 (c) of the Act. The Official Liquidator attached to this Court is appointed as Liquidator for the respondent company for taking necessary and follow up action, consequent upon the winding up of the respondent company, in accordance with law. 7. Accordingly, Company Petition is allowed. _______________________ G.V.SEETHAPATHY,J 11th August, 2010. Tsy