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IN THE HIGH COURT OF MADRAS
S. Tamilvanan & G. Chockalingam, JJ.
Rudhra Dev Aviation Private Limited and Others – Appellants
Vs.
Globe Detective Agency Private Limited – Respondent
O.S.A. Nos. 252, 253 of 2014 and M.P. No. 1 of 2014
Decided On : 5-1-2016
Winding-up Petitions - Companies Act - Section 433, Section 434, Section 439
Fact of the Case:
The respondent-Company filed Company Petitions for winding-up of the appellant-Companies for non-payment of dues. The appellant-Companies contended that the winding-up petitions were without basis and suffered from material irregularity.
Finding of the Court:
The court found that the appellant-Companies had not paid the amounts due to the respondent-Company within the stipulated time as per the provisions of the Companies Act. The court held that the respondent-Company had every right to file the Company Petitions seeking for winding-up of the appellant-Companies.
Issues: Non-payment of dues by the appellant-Companies, validity of the winding-up petitions, compliance with the provisions of the Companies Act
Ratio Decidendi: The court held that the appellant-Companies had wilfully evaded payments due to the respondent-Company and that the winding-up petitions were maintainable as per the provisions of the Companies Act.
Final Decision: The appeals were dismissed, and the impugned orders passed by the learned single Judge were upheld.
G. Chockalingam, J.
1. Original Side Appeal No. 252 of 2014 is filed against the order dated 11.09.2014 passed by the learned single Judge in Company Petition No. 325 of 2013 on the file of this Court.
2. Original Side Appeal No. 253 of 2014 is filed against the order dated 11.09.2014 passed by the learned single Judge in Company Petition No. 202 of 2013 on the file of this Court.
3. In the Company Petitions filed by the respondent-Company for winding-up of the appellant-Companies and to appoint the Official Liquidator of this Court as the Liquidator of the appellant-Companies, the learned single Judge passed the following order on 11.09.2014:
"Company Petition No. 325 of 2013:
"9. Having regard to the submissions made by the learned counsel on either side and also taking into consideration the materials available on record before this Court, I pass the following order:
i) The Company Petition is admitted.
ii) Notice to the respondent.
iii) Notice on the Court Notice Board.
iv) Notice to the Registrar of Companies, Chennai.
v) Notice to be affixed in the Registered Office of the respondent-Company.
vi) The petitioner-Company is directed to publish the Company Petition in one issue of English Daily viz., The New Indian Express circulated in Chennai and one issue of Tamil Daily viz., Daily Thanthi circulated in Chennai and also in the Tamil Nadu Government Gazette, by fixing 14 days in clear advance by fixing the hearing date as 27.10.2014.
vii) The Official Liquidator, High Court, Madras is appointed as Provisional Liquidator and is directed to take charge of the assets of the respondent-Company. The Ex-Directors of the respondent-Company are directed to file their statement of affairs before the Official Liquidator within a period of 21 days. The Company shall deposit a sum of Rs. 10,000/- (Rupees ten thousand only) towards initial expenses before the Official Liquidator in this matter.
Post the matter on 27.10.2014."
Company Petition No. 202 of 2013:
"8. Having regard to the submissions made by the learned counsel on either side and also taking into consideration the materials available on record before this Court, I pass the following order:
i) The Company Petition is admitted.
ii) Notice to the respondent.
iii) Notice on the Court Notice Board.
iv) Notice to the Registrar of Companies, Chennai.
v) Notice to be affixed in the Registered Office of the respondent-Company.
vi) The petitioner-Company is directed to publish the Company Petition in one issue of English Daily viz., The New Indian Express circulated in Chennai and one issue of Tamil Daily viz., Daily Thanthi circulated in Chennai and also in the Tamil Nadu Government Gazette, by fixing 14 days in clear advance by fixing the hearing date as 27.10.2014.
vii) The Official Liquidator, High Court, Madras is appointed as Provisional Liquidator and is directed to take charge of the assets of the respondent-Company. The Ex-Directors of the respondent-Company are directed to file their statement of affairs before the Official Liquidator within a period of 21 days. The Company shall deposit a sum of Rs. 10,000/- (Rupees ten thousand only) towards initial expenses before the Official Liquidator in this matter.
Post the matter on 27.10.2014."
4. Learned counsel for the appellant-Companies contended that the learned single Judge has not properly appreciated the merits of the case. He further submitted that there is no basis for winding up of the appellant-Companies at the instance of the creditor, without following due process of law and the learned single Judge has not considered the serious consequences involving the winding up of the appellant-Companies, and as such, the impugned orders suffer from material irregularity. He further contended that the learned single Judge failed to consider the fact that the amount payable for the services rendered by the respondent-Company, is only unilateral demand at the instance of the respondent-Company and the demand, which is the subject matter of t
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