1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 18 OF 1998 GILL & Co. .. Petitioner Versus Rushabh Precision Bearing Ltd. .. Respondent Mr. Gaurav Joshi a/w Mr. Avinash Joshi i/by Mulla & Mulla for the Petitioner Mr. Rajesh Vora- Ex-managing Director of the Respondent Company present CORAM : S. J. KATHAWALLA, J. DATE : 30th March, 2010 P.C.: 1. The Consent Terms were filed in the Petition for winding up in terms whereof an order was passed on 8th September, 1998. By the consent terms, the Company admitted liability, inter alia in the principal amount of Rs. 14 lacs together with interest in the sum of Rs. 4,95,001/-. An undertaking was furnished to pay the outstanding dues as mentioned in clause-(1) of the Consent Terms with installments. In case of two defaults, the Petition was to stand admitted. While admitting the Petition, the learned Company Judge noted that the Petitioner has filed an affidavit stating that there was non compliance with the order, inasmucn as there was failure to pay the installments for the month of December, 1998 and January, 1999. The Company Petition was thereafter advertised as can 2 be seen from the affidavit proving publication dated 4th October, 2006. Thereafter, by an order dated 21st June, 2007 passed by Justice Dr. D.Y. Chandrachud, the Company Petition was allowed . However, the Company filed a Company Application No. 290 of 2008 on the ground that on 21.6.2007, the AAIFR proceedings were pending in respect of the Company. In the Circumstances, the Company Application No. 290 of 2008 filed by the Company was allowed and the Company Petition was restored to file. 2. On 28th April, 2009, at the request of the Respondent Company, the matter before the AAIFR was adjourned to 10th July, 2009. On 10th July, 2009, time was sought for filing of the Vakalatnama of the Advocates for the Company. As can be seen from the order dated 15th September, 2009, the Vakalatnama was not filed even on 15th September, 2009. It is recorded in the said order by the AAIFR that the appeal is pending against the dismissal of the Reference. The Appellant Company is taking time repeatedly. However, as a last change, the appeal was adjourned to 11th December, 2009. On 11th December, 2009, once again time was sought by the Company before the AAIFR on the ground that its counsel 's father was Hospitalised. The matter was, therefore, adjourned to 27thJanuary, 2010. On 27thJanuary, 2010, none appeared before the AAIFR on behalf of the Company though the matter was called out twice. The appeal filed by the Company before the AAIFR was, therefore, 3 dismissed. 3. In view thereof, as on date, there are no proceedings pending before the AAIFR except for an application filed by the Respondent Company to set aside the order of dismissal dated 27th January, 2010. Pendecy of the said application does not entitle the Company to seek a stay of the winding up proceedings under Section 22 of the Sick Industrial Companies Act (the SICA). 4. From the aforesaid facts, it is more than clearly established that the Company, taking advantage of the provisions of the SICA got the winding up proceedings against it, stayed before this Court and therefore on one pretext or the other did not pursue the appeal filed before the AAIFR. On 18th March,2010, this Court granted time to the Company to file its Affidavit opposing the Company petition, if any. However no Affidavit opposing the petition is filed. Mr. Rajesh Vora, the Ex-Managing Director of the Respondent Company has appeared in person and sought 12 weeks time to make payment. The learned Advocate for the Petitioner has opposed the said Application for adjournment on the ground that the past conduct of the Respondent Company shows that the Company even after filing consent terms have breached the same and they have never been sincere qua their commitments. The learned Advocate for the petitioner is correct in his submission. 4 5. As set out earlier no Affidavit opposing the petition is filed by the Company. Therefore, admittedly, an amount of Rs. 14,00,000/- together with interest in the sum of Rs. 4,95,001/- is due and payable by the Respondent Company to the Petitioner. The Company has failed and neglected to pay the same to the Petitioner. 6. The Company Petition is therefore allowed in terms of prayer Clauses (a) and (b). 7. The Liquidator is directed to act on a copy of this order duly authenticated by the Associate of this Court. (S. J. KATHAWALLA, J.)