HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)

COMPANY PETITION NO.6/2014 Metalman Industries Limited .... Petitioner Vs.

Indore Rolling Mills Pvt. Ltd. .... Respondent ------------------------------------------------------------------------------------

Shri Vijayesh Atre, learned counsel for the petitioner.

Shri A.K.Sethi, learned Sr.Counsel with Shri Nitin Phadke, learned counsel for respondent.

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Whether approved for reporting :

O R D E R

(Passed on 18^th December, 2018)

This Company Petition has been filed for winding up of the respondent company namely Indore Rolling Mills Pvt. Ltd.

u/S.433(e) of the Companies Act, 1956 [2] The plea in the company petition is that the petitioner is a manufacturer and trader of MS. Steel pipes Sections, Sheets, Strips and corrugated Sheets & and SS Steel Products. The petitioner had supplied these products to the respondent company and the last payment received by the petitioner was of a sum of Rs.1,50,000/- on 12/12/2011, but still a sum of Rs.29,45,335/- (principal amount Rs.20,34,379/- plus interest @ 24% per month from 01/4/2012 to 10/2/2014 amounting to Rs.9,10,956/-) was outstanding, therefore, the petitioner had served the statutory notice dated 10/2/2014 to the respondent demanding the outstanding amount and indicating that failing to repay the amount the winding up action u/S.433 and 434 of the Companies Act will be initiated. Since the amount was not paid, therefore, present petition has been filed.

[3] The respondent has filed the reply taking objection that Shri Rajiv Lochan Soni was not competent to file the present petition and that no amount as claimed by the petitioner is due and payable to the respondent company and the settlement of account has already been done and letter of confirmation of account dated 31/2/2013 was issued and the substratum of the company has not been erroded. Thereafter rejoinder and additional reply have been filed by the parties in support of their respective pleas.

[4] Learned counsel for petitioner submits that the company petition has been filed by the authorized person. He also submits that as per the confirmation of account Annexure P/1 a sum of Rs.20,34,379/- was due and payable as on 01/4/2012 which has not been paid inspite of the demand, therefore, a case for winding up of the respondent company is made out. He further submits that the substratum of the respondent company has been erroded since the liability is much more than the assets and that the respondent company has already been closed down and after 2015 it has not filed the balance sheet.

[5] Per contra, learned counsel for respondent submits that Shri Rajiv Lochan Soni is not competent to file the company petition and that the account of the company was settled vide Annexure R/1 and balance amount of Rs.34,379/- was paid, hence no amount is due and payable and the respondent company is a viable company.

[6] I have heard the learned counsel for parties and perused the record.

[7] So far as the objection of the respondent that the company petition has not been filed by the competent person, the record reflects that vide resolution dated 31/7/2007 Annexure P/5 passed by the Board of Directors of the petitioner company, Rajiv Lochan Soni was authorized to file the winding up petitions. This resolution also reflects that Shri Rajiv Lochan Soni is the Director of the petitioner company. Hence, the objection is rejected by holding that the company petition has been filed by the competent person.

[8] U/S.433(e) of the Companies Act company is liable to be wound up in case if the company is unable to pay its debt. Sec.434(1)(a) provides for the situation when company is deemed unable to pay its debt and in terms thereof if the company is in debt of a sum exceeding One lakh rupees and the creditor serves a notice upon the company in debt demanding the sum due and even after service o