1 404.10-cp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.404 OF 2010 Shree Renuka Sugars Ltd. & Anr. ....Petitioners Versus K.R.Commodities Exports Pvt. Ltd. ....Respondents Dr.B.B.Saraf i/b. Chitnis & Co. for the petitioners. Mr.S.Shetty i/b. DSK Legal for respondents. CORAM: S.J.KATHAWALLA , J. DATED : 15th JULY, 2011. P.C.: The petitioners have filed the present Company Petition seeking winding up of the respondent K.R. Commodities Exports Pvt. Ltd. (the Company). The Company Petition is for hearing and final disposal. 2. According to the petitioners, the Company has failed and neglected to discharge its indebtedness and pay the petitioner's dues as on 7th September, 1990, in the sum of Rs. 2,51,00,000/- along with interest as more particularly set out in the particulars of claim annexed and marked Exhibit- “Y” to the petition. In paragraph No.12 of the petition, the petitioners have pointed out that the Company has admitted its liability to the petitioners in its books of accounts from year to year. The Company by its Email dated 16th July, 2010 has confirmed that there is credit balance of Rs.2,51,00,000/- in books of accounts of the Company standing in the name of the petitioners and the same shall be received before the month of August,2010 (Exhibit-R at page 235 of the petition). 2 404.10-cp 3. The Company did not file any reply to the Company Petition but instead when the Company Application No.553 of 2010 was taken out by the petitioners the Company agreed to pay a sum of Rs.2,51,00,000/- to the petitioners. Accordingly Minutes of Order were prepared and an order dated 27th October, 2010 was passed by this Court in terms of the minutes of order. However, the Company failed and neglected to pay the said amount to the Petitioners as agreed under the minutes of order. Though, this Court granted repeated extensions to the Company to make the said payment, the Company failed to do so. Ultimately the petition stood admitted and the petitioners advertised the admission of the petition as set out in its affidavits of publication dated 21st April, 2011 and 11th May, 2011. In fact, pursuant to the order of this Court dated 29th December, 2010, the Liquidator, High Court, Bombay came to be appointed as provisional Liquidator of the Company. 4. The above Company petition was taken up for final hearing on 8th July, 2011 when the Advocates for the Company informed the Court that he has not received any instructions in the matter from the Company and that he would give a final notice to the Company seeking instructions. The matter was therefore, adjourned to 15th July, 2011 i.e. today. Today, the learned Advocate appearing for the Company tenders a copy of the letter dated 12th July, 2011 written by the said Advocate to the Company informing them that the above Company Petition is placed by this Court for hearing and final disposal today and that they should give necessary instructions in the matter to their Advocates. The Company has received the said letter on 13th 3 404.10-cp July, 2011 and have also acknowledged the receipt of the same on a copy of the letter dated 12th July, 2011 which is tendered in Court. The said letter is taken on record and marked 'X' for identification. The learned Advocate appearing for the company submits that he is unable to make any submissions in the matter since the Company has not come forward to give instructions in the matter. 5. From the aforesaid facts, it is clear that the company after admitting its liabilities has issued cheques to the petitioner. However, the company, due to financial difficulties has failed to honour payments despite repeated extensions sought and obtained from this Court. I am, therefore, convinced that the Company is unable to pay its debts and is commercially insolvent. The Company deserves to be wound up. In view thereof, the Company Petition is allowed in terms of prayer clause (a). The Company Petition is accordingly disposed of. (S.J.KATHAWALLA, J.)