1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION COMPANY COMPANY COMPANY PETITION PETITION PETITION NO.515 OF 2003 NO.515 OF 2003 NO.515 OF 2003 M/s M/s M/s Real Value Appliances Real Value Appliances Real Value Appliances ...... Petitioner Petitioner Petitioner None None None present present present for Petitioner for Petitioner for Petitioner with with with COMPANY COMPANY COMPANY PETITION NO.373 OF 1996 PETITION NO.373 OF 1996 PETITION NO.373 OF 1996 M/s M/s M/s Nicco Nicco Nicco Uco Financial Services Ltd.Petitioner Uco Financial Services Ltd.Petitioner Uco Financial Services Ltd.Petitioner vs vs vs Real Real Real Value Appliances Ltd Value Appliances Ltd Value Appliances Ltd ......... Respondent Respondent Respondent Ms.Payal Ms.Payal Ms.Payal Ghandhy Ghandhy Ghandhy i.b Shah & Sanghvi for Petitioner i.b Shah & Sanghvi for Petitioner i.b Shah & Sanghvi for Petitioner with with with COMPANY COMPANY COMPANY PETITION NO 424 OF 2002 PETITION NO 424 OF 2002 PETITION NO 424 OF 2002 M/s M/s M/s Caldic Caldic Caldic Deutschl and Gmbh & Co Kg.Petitioner Deutschl and Gmbh & Co Kg.Petitioner Deutschl and Gmbh & Co Kg.Petitioner vs vs vs M/s M/s M/s Real Real Real Value Appliances Ltd .. Respondent Value Appliances Ltd .. Respondent Value Appliances Ltd .. Respondent Ms Ms Ms Sonali Sonali Sonali Shinde i.b Consulta Juris for Petitioner Shinde i.b Consulta Juris for Petitioner Shinde i.b Consulta Juris for Petitioner with with with COMPANY COMPANY COMPANY PETITION NO.341 OF 1996 PETITION NO.341 OF 1996 PETITION NO.341 OF 1996 PAL PAL PAL Credit Credit Credit and Capital Ltd .... Petitioner and Capital Ltd .... Petitioner and Capital Ltd .... Petitioner None None None present present present for Petitioner for Petitioner for Petitioner CORAM CORAM CORAM : : : A.M.KHANWILKAR, J A.M.KHANWILKAR, J A.M.KHANWILKAR, J DATED DATED DATED : : : 15th January, 2008 15th January, 2008 15th January, 2008 COMMON COMMON COMMON ORDER ORDER ORDER P.C. P.C. P.C. 1.1.1. In so far as Company Petition No. 515 of 2003 In so far as Company Petition No. 515 of 2003 In so far as Company Petition No. 515 of 2003 isisis concerned, the same is registered on the basis concerned, the same is registered on the basis concerned, the same is registered on the basis of of of recommendations received from the B.I.F.R. in recommendations received from the B.I.F.R. in recommendations received from the B.I.F.R. in terms terms terms of order dated 31st July, 2001. The said of order dated 31st July, 2001. The said of order dated 31st July, 2001. The said order order order refers to the material on record before the refers to the material on record before the refers to the material on record before the B.I.F.R. B.I.F.R. B.I.F.R. which establishes that the networth of which establishes that the networth of which establishes that the networth of respondent respondent respondent company company company had completely eroded. Besides, had completely eroded. Besides, had completely eroded. Besides, 2 ititit was was was not possible to revive the company. In this not possible to revive the company. In this not possible to revive the company. In this backdrop, backdrop, backdrop, the B.I.F.R. recommended winding up of the B.I.F.R. recommended winding up of the B.I.F.R. recommended winding up of the the the respondent company. While acting on this respondent company. While acting on this respondent company. While acting on this report, report, report, my predecessor passed an order dated 2nd my predecessor passed an order dated 2nd my predecessor passed an order dated 2nd December, December, December, 2004 proceeded to admit this petition. 2004 proceeded to admit this petition. 2004 proceeded to admit this petition. After After After going through the materials appended to the going through the materials appended to the going through the materials appended to the report report report of the B.I.F.R. I am in agreement with the of the B.I.F.R. I am in agreement with the of the B.I.F.R. I am in agreement with the opinion opinion opinion recorded by B.I.F.R. that the respondent recorded by B.I.F.R. that the respondent recorded by B.I.F.R. that the respondent company company company deserves to be wound up as networth of the deserves to be wound up as networth of the deserves to be wound up as networth of the respondent respondent respondent company has eroded and it is not company has eroded and it is not company has eroded and it is not possible possible possible to revive that company. to revive that company. to revive that company. 2.2.2. Besides the material forwarded by the B.I.F.R. Besides the material forwarded by the B.I.F.R. Besides the material forwarded by the B.I.F.R. and and and the opinion of the B.I.F.R., there is the opinion of the B.I.F.R., there is the opinion of the B.I.F.R., there is additional additional additional reason for which the respondent company reason for which the respondent company reason for which the respondent company deserves deserves deserves to to to be wound up. The petitioner in Company be wound up. The petitioner in Company be wound up. The petitioner in Company Petition Petition Petition No. 373 of 1996 has prayed for that No. 373 of 1996 has prayed for that No. 373 of 1996 has prayed for that relief relief relief by by by filing petition under section 434 and 433 filing petition under section 434 and 433 filing petition under section 434 and 433 of of of the Companies Act on the assertion that the the Companies Act on the assertion that the the Companies Act on the assertion that the petitioner petitioner petitioner had extended financial assistance to the had extended financial assistance to the had extended financial assistance to the respondent respondent respondent company by way of inter-corporate company by way of inter-corporate company by way of inter-corporate deposits. deposits. deposits. The respondent company executed demand The respondent company executed demand The respondent company executed demand promissory promissory promissory note which is placed on record along note which is placed on record along note which is placed on record along with with with the petition. The respondent company failed the petition. The respondent company failed the petition. The respondent company failed toto to repay the amount inspite of repeated reminders repay the amount inspite of repeated reminders repay the amount inspite of repeated reminders sent sent sent by the petitioner even after maturity date. by the petitioner even after maturity date. by the petitioner even after maturity date. In In In the the the circumstances, the petitioner company issued circumstances, the petitioner company issued circumstances, the petitioner company issued statutory statutory statutory notice which was duly served on the notice which was duly served on the notice which was duly served on the respondent. respondent. respondent. Inspite of statutory notice as the Inspite of statutory notice as the Inspite of statutory notice as the amount amount amount remained remained remained unpaid and outstanding dues are far unpaid and outstanding dues are far unpaid and outstanding dues are far 3 exceeding exceeding exceeding the statutory amount, the petitioner in the statutory amount, the petitioner in the statutory amount, the petitioner in that that that petition have approached this Court for petition have approached this Court for petition have approached this Court for winding winding winding up of the respondent company. The amount up of the respondent company. The amount up of the respondent company. The amount claimed claimed claimed by the petitioner as oper the agreement by the petitioner as oper the agreement by the petitioner as oper the agreement between between between the parties is to the tune of Rs.457 lacs the parties is to the tune of Rs.457 lacs the parties is to the tune of Rs.457 lacs on on on the date of filing of the petition. There is the date of filing of the petition. There is the date of filing of the petition. There is nothing nothing nothing on record to indicate that the respondent on record to indicate that the respondent on record to indicate that the respondent company company company made any attempt to pay that amount even made any attempt to pay that amount even made any attempt to pay that amount even after after after admission of the Company Petition. admission of the Company Petition. admission of the Company Petition. 3.3.3. There is yet another Company Petition filed There is yet another Company Petition filed There is yet another Company Petition filed against against against the respondent company being Company the respondent company being Company the respondent company being Company Petition Petition Petition No. 4245 of 2002 for similar reliefs. No. 4245 of 2002 for similar reliefs. No. 4245 of 2002 for similar reliefs. That That That petition is based on the claim arising out of petition is based on the claim arising out of petition is based on the claim arising out of the the the goods sold, delivered and supplied. The goods sold, delivered and supplied. The goods sold, delivered and supplied. The petitioner petitioner petitioner asserts asserts asserts that the petitioner supplied the that the petitioner supplied the that the petitioner supplied the goods goods goods to the respondent company as per its demand. to the respondent company as per its demand. to the respondent company as per its demand. which which which was was was duly delivered to the respondents. At no duly delivered to the respondents. At no duly delivered to the respondents. At no point point point the respondents disputed about the quality, the respondents disputed about the quality, the respondents disputed about the quality, quantity quantity quantity of of of the price of the goods. As the invoice the price of the goods. As the invoice the price of the goods. As the invoice amount amount amount remained unpaid inspite of repeated remained unpaid inspite of repeated remained unpaid inspite of repeated reminders reminders reminders the the the petitioners in the said petition sent petitioners in the said petition sent petitioners in the said petition sent statutory statutory statutory notice dated 14th December, 2001. notice dated 14th December, 2001. notice dated 14th December, 2001. Inspite Inspite Inspite of statutory notice as the amount remained of statutory notice as the amount remained of statutory notice as the amount remained unpaid, unpaid, unpaid, the petitioner has filed the said Company the petitioner has filed the said Company the petitioner has filed the said Company Petition Petition Petition for the relief of winding up of the for the relief of winding up of the for the relief of winding up of the respondent respondent respondent company. Indeed in this petition, company. Indeed in this petition, company. Indeed in this petition, outstanding outstanding outstanding dues payable by the respondent company dues payable by the respondent company dues payable by the respondent company isisis only to the tune of Rs.7,61,300/- in Indian only to the tune of Rs.7,61,300/- in Indian only to the tune of Rs.7,61,300/- in Indian rupees rupees rupees on the date of fiing of the petition which on the date of fiing of the petition which on the date of fiing of the petition which 4 isisis equivalent to 33100 DM. Even this amount has equivalent to 33100 DM. Even this amount has equivalent to 33100 DM. Even this amount has remained remained remained unpaid inspite of demand and publication unpaid inspite of demand and publication unpaid inspite of demand and publication of of of the petition. the petition. the petition. 4.4.4. There is one more petition pending against the There is one more petition pending against the There is one more petition pending against the respondent respondent respondent company being Company Petition No.341 of company being Company Petition No.341 of company being Company Petition No.341 of 1996 1996 1996 for for for the relief of non payment of legal dues to the relief of non payment of legal dues to the relief of non payment of legal dues to the the the extent extent extent of Rs. 5,73,000/- on the date of filing of Rs. 5,73,000/- on the date of filing of Rs. 5,73,000/- on the date of filing of of of the petition arising from the liabiity under the petition arising from the liabiity under the petition arising from the liabiity under hire hire hire purchase agreement. Even the said amount purchase agreement. Even the said amount purchase agreement. Even the said amount remained remained remained unpaid inspite of statutory notice and unpaid inspite of statutory notice and unpaid inspite of statutory notice and admission admission admission of the Company Petition. of the Company Petition. of the Company Petition. 5.5.5. Taking over all view of the matter, it is more Taking over all view of the matter, it is more Taking over all view of the matter, it is more than than than evident that the respondent company is unable evident that the respondent company is unable evident that the respondent company is unable toto to pay pay pay its debt. The respondent company has failed its debt. The respondent company has failed its debt. The respondent company has failed and and and neglected to pay the outstanding dues of its neglected to pay the outstanding dues of its neglected to pay the outstanding dues of its creditors creditors creditors as referred to earlier. No one as referred to earlier. No one as referred to earlier. No one is appearing appearing appearing for the respondent company to resist for the respondent company to resist for the respondent company to resist these these these petitions nor any reply affidavit has been petitions nor any reply affidavit has been petitions nor any reply affidavit has been filed filed filed to controvert the assertions made in the to controvert the assertions made in the to controvert the assertions made in the petition. petition. petition. 6.6.6. Accordingly, it is ordered that the respondent Accordingly, it is ordered that the respondent Accordingly, it is ordered that the respondent Company Company Company be wound up with immediate effect. be wound up with immediate effect. be wound up with immediate effect. 7.7.7. The provisional liquidator appointed by this The provisional liquidator appointed by this The provisional liquidator appointed by this Court Court Court in Company Petition No.235 of 1996. is in Company Petition No.235 of 1996. is in Company Petition No.235 of 1996. is appointed appointed appointed as Official Liquidator to take over as Official Liquidator to take over as Official Liquidator to take over possession possession possession of the assets and properties of the of the assets and properties of the of the assets and properties of the 5 respondent respondent respondent company forthwith and exercise all company forthwith and exercise all company forthwith and exercise all powers powers powers as permissible by law. Petitions are as permissible by law. Petitions are as permissible by law. Petitions are disposed disposed disposed of accordingly. of accordingly. of accordingly. All All All petitions are disposed of accordingly. petitions are disposed of accordingly. petitions are disposed of accordingly. (A.M.Khanwilkar, (A.M.Khanwilkar, (A.M.Khanwilkar, J) J) J)