IN THE HIGH COURT OF KERALA AT ERNAKULAM (ORIGINAL JURISDICTION)

IN THE MATTER OF THE COMPANIES ACT, 1956 AND IN THE MATTER OF M/S.SARK SPICE PRODUCTS PVT. LTD.

CO.PET..NO.21/2015 BEFORE:

THE HONOURABLE MR.JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 5 T H DAY OF JULY, 2023/1 4 T H ASHADHA, 1945 PETITIONER VIJO VARGHESE, S/O.VARGHESE, RESIDING AT PUTHEN VEETTIL HOUSE, PARANTHAL P.O., PANTHALAM THEKKEKKARA VILLAGE, ADOOR TALUK,PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, ROBIN THOMAS, S/O.THOMAS, AGED 42, PUTHEN VEETTIL, PARANTHAL P.O., PANDALAM THEKKEKKARA VILLAGE, PATHANAMTHITTA DISTRICT.

RESPONDENTS SARK SPICE PRODUCTS PVT. LTD.,HAVING ITS REGISTERED OFFICE AT ERA NORTH P.O., NEELAMPEROOR VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT, PIN - 685 551, REPRESENTED BY ITS MANAGING DIRECTOR ARUN MATHEW PHILIP.

REGISTRAR OF COMPANIES,1ST FLOOR, COMPANY LAW BHAWAN, B.M.C ROAD, THRIKKAKKARA P.O., ERNAKULAM DISTRICT - 682 030.

*ADDL. R3. V.S.ABDUL KHADER, S/O.LATE SAYED MUHAMMED,AGED

54 YEARS, DOING BUSINESS, OF MADAVANA HOUSE, VADAVATHUR P.O., PIN 686 010, VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT,NOW RESIDING AT VANTHUPARAMBIL HOUSE, AZHOOR JUNCTION, PATHANAMTHITA. PIN - 689 645.

*(IMPLEADED AS PER ORDER DATED 2/12/2015 IN CA

655/2015)

COMPANY PETITION UNDER SECTION 433(E) AND 439 OF COMPANIES ACT, 1956 FILED BY THE PETITIONER ABOVE NAMED PRAYING FOR AN ORDER THAT :-

Contd.......2 i) SARK SPICE PRODUCTS PVT.LTD. BE WOUND UP BY THIS HON'BLE COURT UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956;

ii) APPOINT THE OFFICIAL LIQUIDATOR OF THIS HON'BLE COURT AS THE LIQUIDATOR OF THE 1^ST RESPONDENT COMPANY;

iii) SUCH OTHER ORDERS MAY BE MADE IN THE FACTS AND CIRCUMSTANCES OF THE CASE.

THIS COMPANY PETITION COMING ON FOR ORDERS ON THIS DAY UPON HEARING SRI.SHIJU VARGHESE & A.C.EAPEN, ADVOCATES FOR THE PETITIONER, M/S..M.GOPIKRISHNAN NAMBIAR, BENNY P. THOMAS, K.JOHN MATHAI, JOSON MANAVALAN, KURYAN THOMAS & POOJA MENON, ADVOCATES FOR THE FIRST RESPONDENT – COMPANY, D.S.G FOR R2, M/S.DR.K.P.PRADEEP, T.THASMI, PHILIP MATHEW AND MATHEW GEORGE VADAKKEL, ADVOCATES FOR RESPONDENT NO.3, THE COURT PASSED THE FOLLOWING:-

C.R DEVAN RAMACHANDRAN, J.

=========================

C.P.No. 21 of 2015 ==========================

Dated this the 5^th day of July, 2023

ORDER

The petitioner seeks that the 1^st respondent – Company -

which is one registered under the Companies Act, 1956 – be wound up, because they have refused and failed to discharge a legally enforceable debt to him, which is covered by Annexure-A cheque.

2. According to the petitioner, he had given a loan of Rs.30,00,000/- to the Company and that, towards its repayment, the Company had issued Annexure-A cheque; which, however, was dishonoured, as evident from Annexure-H Memo issued by the Bank (same as Annexure-B, but which contains one less page). He says that he, therefore, issued Annexure-C notice to the Company, asking them to repay the amount, but that when they refused to do so – which is manifest from their reply, namely Annexure-E – he has been constrained to approach this Court through this Company Petition.

3. I have heard Sri.Shiju Varghese – learned counsel for the petitioner and Smt.Pooja Menon, appearing for the 1^st respondent –

Company.

4. Smt.Pooja Menon, relying upon the counter affidavit filed by her client, submitted that no amounts are admitted by her client to be due to the petitioner, much less Rs.30,00,000/-; and that this Company Petition is vitiated on account of suppression of material facts. She explained that Annexure-A cheque was not dishonoured on account of “lack of funds”, but because the Bank appears to have, by then, filed a suit against the Company and hence refused to honour it. She added that, in fact, the petitioner had filed S.T No.2938/2011 before the Court of Judicial First Class Magistrate, Adoor, invoking Section 138 of the Negotiable Instruments Act, against Annexure-A cheque, which he then withdrew without citing any reason and without obtaining leave of the Court