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2011 Supreme(AP) 533
High Court of Andhra Pradesh
B. SESHASAYANA REDDY
Coromandel International Limited, rep. by B. Gopala Krishna
Versus
Chemcel Biotech Limited Auto Nagar, Vijayawada
Company Petition No.160 of 2009
Decided on : 18-07-2011
For the Petitioner:B. Nalin Kumar, Advocate.
For the Respondent:Ch. Ramesh Babu, Advocate.
Headnote:
Companies Act, 1956 – Sections 433(e), 434(a), 439(1)(b), 434, 10(3) – Company Winding up Issue – This Company Petition has been taken out by Coromandel International Limited seeking an order of winding up of the respondent company-Chemcel Biotech Limited – Held, The settled principle is that powers of attorney must be strictly construed, the rationale behind that principle being that the powers given are not abused by the agents and the actions are restricted within and only to the extent the power is indicated or given – Even when one reads the power as a whole what it boils down to is this: that the constituted attorney – B.Gopala Krishna is authorised to sign and verify plaints, written statements, petitions, vakalats, claims and objections and memorandum of all kinds and to present them in any Court in India and offices and to file appeals, revisions and/or reviews for and on behalf of the Company before any Court in India and to appoint advocates and sign vakalatsand to accept service on behalf of the Company in connection with such proceedings as above mentioned – It will be difficult to read that the powers conferred on the constituted authority will include winding up proceedings – Since B.Gopala Krishna, who verified the contents of the petition has no authority to initiate winding up proceedings against the respondent company – Company Petition Dismissed
1. This Company Petition has been taken out by Coromandel International Limited under Section 433(e) read with Section 434(a) and 439(1)(b) of the Companies Act, 1956 seeking an order of winding up of the respondent company-Chemcel Biotech Limited.
2. The petition averments, in brief, are:-
2(a) The petitioner is a company incorporated under the Companies Act, 1956 (“the Act”, for brevity) represented by its authorised signatory B.Gopala Krishna. It is engaged in the business of manufacture, marketing and dealing in various types of farm inputs like Fertilisers, pesticides etc., having its registered office at Coromandel House, 1-2-10, Sardar Patel Road, Secunderabad.
2(b) Chemcel Biotech Limited-respondent company was incorporated on 29.9.1995 as a public limited company. The registered office of the respondent company is situated at
D.No.16-130/12, JRD Tata Industrial Estate, Autonagar,3rd Cross Road Extension, Vijayawada.
2(c) Ficom Organics Limited was a company incorporated under the Act in the State of Maharashtra. The said company was engaged in the business of manufacture, production and distribution in fertilizers, pesticides, insecticides etc. The said Ficom Organics Limited came to be amalgamated with the petitioner company as per the orders of this Court dated 10.4.2007 in Company Petition No.21 of 2007, connected with C.A.No.1748 of 2006 and orders of Bombay High Court in Company Petition No.94 of 2007 connected with C.A.No.1211 of 2006 and Company Petition No.96 of 2007 connected with C.A.No.1207 of 2006, dated 24.7.2007. As per the scheme of amalgamation, Ficom Organics Limited came to be amalgamated with the petitioner company and thereby, the petitioner company acquired assets and liabilities of Ficom Organics Limited.
3. The respondent company placed a purchase order dated 06.12.2006 with Ficom Organics Limited for supply of 100 kg of Henaconazole-tech valued at Rs.9,59,640/- . Ficom Organics Limited supplied the same under Invoice-cum-Delivery Challan No.1 dated 11.12.2006 despatched by Common Carrier Transport Corporation of India under lorry receipt No.108019973, dated 11.12.2006. The respondent having received the material failed to pay the value of the same in spite of several demands made by the petitioner company. After prolonged demands made by Ficom Organics Limited and the petitioner company, the respondent company issued a cheque bearing No.48662 dated 30.11.2007 for Rs.5,00,000/- and cheque bearing No.60882 dated 21.01.2008 for Rs.4,59,640/- drawn on Union Bank of India, Vijayawada towards discharge of the above-referred debt. On presentation, both the cheques came to be dishonoured due to insufficient funds. Thereafter, the petitioner company issued a statutory notice as provided under Section 138 of the Negotiable Instruments Act and filed C.C.No.229 of 2009 and C.C.No.323 of 2009 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad against the respondent company and the Managing Director for the offence under Section 138 of the Negotiable Instruments Act. The complaints filed under the Negotiable Instruments Act are pending disposal. The Managing Director of the respondent company made an endorsement on 30.3.2009 confirming the balance outstanding to the petitioner company. The petitioner company issued a notice dated 11.5.2009 by registered post acknowledgment due and also through fax bearing No.08662545437 dated 11.5.2009 calling upon the respondent company to liquidate its liability within four weeks. The respondent company acknowledged the receipt of notice dated 11.5.2009 in its letters dated 13.6.2009 and 13.7.2009. The respondent company assured the petitioner company with regard to payment of amount under letter dated 13.6.2009. Subsequently, the respondent company sought time under letter dated 13.7.2009. In spite of such assurances, the respondent company failed to liquidate the liability. The respondent company is also heavily indebted and is not in a po
