1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi COMPANY PETITION NO.28 OF 2009. In the matter of winding up of Elite International Pvt.Ltd. Shandong Demian Incorporated Company. ..Petitioner. .... Mr. Darshan Mehta, i/b. M/s. Dhruve Liladhar & Co., for Petitioner. Mr. Amar Mishra, i/b. Mustafa Motiwala, for Respondent. .... CORAM : S.J.KATHAWALLA, J. DATE : 28TH AUGUST 2009. P.C. This company petition is filed by the petitioner seeking winding up of the company Elite International Private Limited. 2. It is the case of the petitioner that they are in the business of production of Grey Fabrics (the said goods). The petitioner sold, supplied and delivered to the respondent company the said goods as per their specifications and requirements under 9 invoices, aggregating to U.S. $ 2,556,079.87 . Upon expiry of the credit period, the petitioner repeatedly demanded from the respondent company the 2 said payments and on continued persistence, the respondent company made some part payments leaving a balance of U.S. $ 17,71,338.21, which is not paid till date. The petitioner therefore, issued a statutory notice dated 20 th August 2008 calling upon the respondent company to pay the said outstanding balance amount of U.S.$ 17,71,338.21 alongwith interest at the rate of 18% within 21 days from the receipt of the notice. Admittedly, the respondent company did not reply to the said notice and also did not comply with the demand raised therein. 3. Thereafter, the petitioner filed the present company petition to which an affidavit-in-reply is filed by the respondent company in March 2009. In the said reply, the respondent company have not admitted their liability to pay to the petitioner the amount of U.S. $ 17,71,338.21 and have alleged that the accounts are required to be reconciled as certain goods/stocks were returned by them to the petitioner. It is also alleged that no interest is payable on any amounts found outstanding. The respondent company in its said affidavit-in- 3 reply have also stated that the delay in payments, if any, was due to current crisis in the economy all over the world and delayed receipts from the purchasers. It is further stated that the respondent has always been and is ready and willing to pay all legitimate dues that may be found on reconciliation of accounts, however sufficient time would be required due to current economic crisis. The contentions of the respondent company are dealt with by the petitioner in their affidavit-in-rejoinder. The petitioner has denied all the allegations made by the respondent company. The petitioner has in paragraph 7 of the rejoinder given details of the value of the goods returned and has also pointed out that due credit is given to the respondent company for the same. The petitioner has denied that any reconciliation of accounts is required as alleged and the outstanding amount due is crystal clear and unambiguous. 4. The learned Advocate appearing for the petitioner has submitted that despite giving more than sufficient time to the respondent company, the company has failed and neglected to pay to 4 the petitioner any amounts due and payable by the respondent company. There is no defense available to the respondent company and the defense raised in the affidavit-in-reply is sham and bogus. The respondent company is commercially insolvent and is unable to pay its debts. 5. The learned Advocate appearing for the respondent company has submitted that the amount claimed by the petitioner from the respondent company is admittedly due to the petitioner. However, they have to only fix the schedule of payments and therefore, some time is required by the respondent company to fix the revised schedule. From the Roznama, it appears that ever since the petition is filed in March 2009, parties have repeatedly sought time and the same was granted by this Court. On 12 th June 2009, time was granted to the parties “for settlement”. Again, time was obtained on 25 th June 2009 and 2 nd July 2009. On 9 th July 2009, this Court was informed that settlement is not possible and petition will have to proceed on merits. The petition was, therefore, adjourned to 24 th July 5 2009 for admission. On 29 th July 2009, since none was present for the parties, the petition was adjourned to 20 th August 2009. On 20 th August 2009 once again, time was given to the parties for settlement. On 27 th August 2009, this Court refused to grant any further adjournments and placed the petition for admission, today, i.e. 28 th August 2009. 6. From the aforesaid facts, it is clear that the statutory notice received by the respondent company was not replied to and the claims made therein were therefore not disputed by the respondent company. Though an affidavit-in- reply has been filed to the petition, attempting to raise certain defenses which as can be seen from the rejoinder are frivolous, the same are not pressed before this Court and the only argument advanced on behalf of the respondent company is that the petitioner has agreed to revise the schedule for payments. From the aforesaid dates set out, it is clear that the ground of settlement is merely used as an excuse by the respondent company and despite several opportunities given by this Court, the parties have 6 failed to settle the matter. In fact, even today, the respondent company is not able to give any schedule of payments. It is therefore, established beyond any doubt that the company is unable to pay its debts. The company petition is accordingly admitted and made returnable on 3 rd November 2009 and is directed to be advertised. 7. The petitioner shall advertise the petition in two local newspapers, namely “Free Press Journal”, “Maharashtra Times” and in the Maharashtra Government Gazette. The petitioner shall deposit an amount of Rs.10,000/- with the Prothonotary and Senior Master towards the publication charges, within three weeks from the date of the respondent company failing to deposit the said amount, with intimation to the Company Registrar failing which the petition shall stand dismissed for non-prosecution. [ S.J.KATHAWALLA, J. ]