1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.694 OF 2000 M/s.Mukand Global Finance Limited Petitioner versus M/s.Enkay Texofood Industries Ltd. Respondent Mr.S.P.Bharti for petitioner. KMr.Manisha Poladia i/by Mansukhlal & Hiralal & Co. for respondent. CORAM : S.J.KATHAWALLA, J. DATE : 1st July 2011 PC : 1. The petitioner agreed to grant hire purchase facility to the respondent in respect of plant and machinery vide their in-principle sanction letter dated 23rd September 1997 on the terms and conditions contained therein. One of the conditions was that the company shall avail and use the said facility completely by 31st December 1997 and in case they fail to utilize the said facility by the said date, the facility granted by the petitioner would lapse automatically. 2. The company availed the higher purchase facility to the extent of Rs.6,08,441=71 but failed to avail the balance facility as a result whereof the said facility lapsed automatically. The company agreed to repay the amount by installments of Rs.25,000/- and agreed to increase the installment amount as the financial position of the company improves. However, the respondent company committed default in repayment of the said amount of Rs.6,08,441=71 Ps.. The petitioner by their letters dated 16th January 1999 and 8th April 1999 requested the respondent company to clear the dues of the petitioner. The company thereafter issued cheques which were dishonoured as is recorded by the petitioner by their 2 letter to the company dated 23rd September 1999. The petitioner therefore by their statutory notice dated 21st February 2000 called upon the company to pay a sum of Rs.6,24,098/- due and payable as on 31st January 2000 with further interest @ 25% p.a. on Rs.5,43,943=74 Ps. within 21 days from the receipt of the notice. Though the registered A.D. packet containing statutory notice was returned by the postal authorities to the petitioner on 26.2.2000, the notice sent under certificate of posting was not returned. The petitioner therefore by way of abundant caution caused hand delivery of the said notice dated 8.3.2000 at the registered office of the company. The company received the said notice but neither paid the amount outstanding nor disputed its liability. The petitioner therefore filed the present petition. 3. At the stage of admission of the petition, initially the advocate for the respondent sought time to file a reply on behalf of the company. The petition was therefore adjourned to 18.10.2000. However, the company failed to file any reply and therefore the petition was admitted on 23.11.2000 and advertised as can be seen from the affidavit of publication dated 23.9.2004. In the meantime, since the company had filed a reference before the BIFR, the company petition could not be taken up for final hearing. Ms.Manisha Poladia, the learned advocate for the company in a connected matter informed this Court yesterday that the BIFR reference filed by the company has abeted and the company is not carrying on any business. At that point of time the learned advocate informed the Court that though she does not have instructions to appear for the company in the present petition, she will inform the company that the present company petition is placed for hearing and final disposal before this Court today. Today Ms.Poladia, advocate, informs the Court that she has informed the company that the above company petition is today placed before this Court for hearing and final disposal. However, none appear for the company. No reply is filed by the company even after the company petition was admitted. As set out earlier the company is not carrying on any business. In view thereof, the submissions made in the 3 company petition namely that the company is unable to pay its debts and deserves to be wound up have remained uncontroverted. I am therefore satisfied that the respondent company is unable to pay its debts and deserves to be wound up. In view thereof, the company petition is allowed in terms of prayer clauses (a) and (b) of the petition which reads thus :- "(a) That the said company viz. M/s.Enkay Texofood Industries Ltd. be ordered to be wound up by and under the orders and directions of this Hon'ble Court; (b) That the Official Liquidator, High Court, Bombay be appointed Liquidator of the said company viz. M/s.Enkay Texofood Industries Ltd. with all powers under the Companies Act, 1956." (S.J.KATHAWALLA, J.)