1 cp484-85-86-97.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.159 OF 2011 WITH COMPANY PETITION NO.497 OF 2005 M/s.Mahavir Traders .. Petitioner Versus The Official Liquidator of M/s.Ralliwolf Ltd. (In liqn) .. Respondent and B.K.Sharma, Ex-Director of M/s.Ralliwolf .. Applicant WITH COMPANY APPLICATION NO.160 OF 2011 WITH COMPANY PETITION NO.484 OF 2005 Ashish R. Shah .. Petitioner Versus The Official Liquidator of M/s.Ralliwolf Ltd. (In liqn) .. Respondent and B.K.Sharma, Ex-Director of M/s.Ralliwolf .. Applicant WITH COMPANY APPLICATION NO.161 OF 2011 WITH COMPANY PETITION NO.486 OF 2005 Ramanlal M. Sharma .. Petitioner Versus The Official Liquidator of M/s.Ralliwolf Ltd. (In liqn) .. Respondent 2 cp484-85-86-97.doc and B.K.Sharma, Ex-Director of M/s.Ralliwolf .. Applicant WITH COMPANY APPLICATION NO.162 OF 2011 WITH COMPANY PETITION NO.485 OF 2005 M/s.Machine Tools & Bearing Corporation .. Petitioner Versus The Official Liquidator of M/s.Ralliwolf Ltd. (In liqn) .. Respondent and B.K.Sharma, Ex-Director of M/s.Ralliwolf .. Applicant Mr.P.K.Samdani, Senior Advocate with K. Kerawala i/b. R.K.Associates for applicant Mr.A.A.Maniyar i/b. M/s.M.Jani & Co. for respondent/ Original petitioner Dr.T.Pandian, O.L. present CORAM : S.C.DHARMADHIKARI, J. 18th August 2011. P.C.: 1] In these company applications, order have been passed on 29th July 2011, directing the Official Liquidator to advertise the proceedings and invite claims from creditors including workers by 3 cp484-85-86-97.doc giving them 14 day's clear period to lodge their claim with Official Liquidator. The Liquidator has filed an affidavit of publication, stating therein that he has been appointed as provisional liquidator and, thereafter, the instant company is directed to be wound up. In pursuance of the order passed on 29th July 2011, the O.L., has published the advertisement in Free Press Journal and Navshakti, inviting claims and he has also given details of the notice to the workers/ creditors to prove their claim. The last date of lodging the claim with O.L., was 3rd August 2011. The affidavit states that O.L. has not received any claim from workers, creditors till date. 2] My attention further is invited to the order dated 5th May 2011 directing OL not to take physical possession till 13th June 2011. That order is stated to be continued till date. The order dated 29th July 2011 passed by this Court (Kathawalla, J) reads thus:- “The respondent company is already wound up by order dated 14th June 2010. In order to ascertain the claims against the company of its workers/ 4 cp484-85-86-97.doc creditors, the Official Liquidator shall invite claims from the workers/creditors of the company by issuing advertisements in Free Press Journal (in English) and in Navshakti (in Marathi) and inform the Court the response to the said publication. The petitioner shall on the adjourned date produce a compilation of invoices and the delivery challans qua the goods allegedly supplied by the petitioner to the respondent company. Stand Over to 17th August 2011.” 3] Mr.Samdani submits that original petitioner has been unable to produce any documents and stand of the company, inasmuch as, it has been stated through out that the petitioner did not supply any material as claimed in the petition. There were no part payments ever made, since no material was ever supplied to the company. The original petitioner was repeatedly called upon the produce the documents evidencing supply and my attention is invited to paras 5, 6 and 8 of the affidavit in support in this behalf. 5 cp484-85-86-97.doc 4] There are no claims received by the O.L. The affidavit of OL is already taken on record. The time was given to the Counsel for original petitioners to take instructions as to whether there is any material to show that the orders were placed, that the payment was made and in pursuance thereof, there was supply of the goods or the part payments. 5] Learned Advocate appearing on behalf of the original petitioner states that he has been unable to obtain any instructions from the petitioners. He has contacted them but they have not forwarded any documents as the record is pretty old and it is difficult to trace the same. 6] To my mind, keeping these applications pending would serve no purpose and additionally because, there are no pending claims against the original respondent – applicant before me. In these circumstances, the ex parte order winding up the respondent company dated 14th June 2010 is recalled and set aside. 6 cp484-85-86-97.doc 7] Company Petition is restored to file and taken up for hearing forthwith. Since there is no record produced by the petitioners despite repeated opportunities and the statements in the petition having been denied by the respondents on affidavit, the presumption that is raised by the statutory provisions viz., that the respondent has failed and neglected to pay the dues, cannot be raised in these proceedings. The company petition is filed without any proof of transactions with the respondents and the alleged part payment as well. In such circumstances, the jurisdiction conferred on this Court vide section 433 and 434 of the Companies Act, 1956 cannot be exercised to wind up the respondent company. Company petition is, therefore, dismissed without any costs. The Official Liquidator having not taken possession till date, of the respondent company, he is discharged on payment of cost quantified at Rs.25,000/- (S.C.DHARMADHIKARI, J) 7 cp484-85-86-97.doc