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COMP/33/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 33 of 2009
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AEGIS
HEALTHCARE PRIVATE LIMITED - Petitioner(s)
Versus
ZENET
SOFTWARE LTD - Respondent(s)
=========================================================
Appearance :
MR
SUDHIR M MEHTA for
Petitioner(s) : 1,MS SHAILEE S MEHTA for Petitioner(s) : 1,
MR
NITIN K MEHTA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 04/04/2011
ORAL
ORDER
Heard
learned counsels for the parties.
This
petition is filed by the petitioner under the provisions of Sections
433 and 434 of Companies Act, 1956 with a prayer to order winding up
of respondent Company namely Zenat Software Ltd.
It is the case of the
petitioner that the petitioner has given the
financial facility [loan] of Rs. 1,00,00,000/- on 10.11.2008 on
condition of charge of interest of Rs. 1,00,000/- for 21 days and
to repay the principal amount along with the interest on 30.11.2008,
by the Cheque No. 738924, drawn on Bank
of Maharastra, Bhadra Branch, Ahmedabad by dated 10.11.2008 which
the respondent company have deposited and encashed which is not
disputed.
The petitioner states and submits
that on the basis of the appropriation / adjustment of the amounts,
the total amount due and payable by the Company as on 21/01/2009 is
Rs. 1,03,51,613/- [Principal Amount of Rs. 1,00,00,000/- and total
interest amount of Rs. 2,51,613/- from 30/11/2008 to 21/01/2009] and
further interest from 22/1/2009 to till payment and
statutory notice under Section 434(1) (a) dated 24/12/2008 was sent
at the registered office of the respondent Company by registered
post calling upon the Company to pay up the dues but no reply was
received. Thereafter, out of that, Rs.10,00,000/- was paid on
25.06.2009. The Company has neglected to pay any amount as demanded
by the above notice. It is therefore, submitted that when the
respondent Company has failed and neglected to pay and clear the
dues of the petitioner within the statutory period of 21 days, the
Company is deemed to be unable to pay the debts in normal and
ordinary course of business and the Company has become insolvent,
therefore, it is prayed that pending final disposal of the petition,
the Official Liquidator appointed to this Court be appointed as
provisional Liquidator under the Companies Act, 1956 and during
pendency of the petition, the respondent, its servants and agents be
restrained from disposing, alienating, encumbering, transferring and
creating third party rights over the assets and properties of the
Company.
Learned
counsel for the respondent submits that the fact stated by the
petitioner are not in dispute and the
respondent Company is unable to pay the dues.
Considering
the overall facts and circumstances of the case, from the record it
transpires that the respondent Company has failed to pay the legal
dues of the petitioner company and inspite of service of statutory
notice under Section 434. The
respondent Company, however, gave no reply within or even after the
completion of statutory period of three weeks. The petitioner has,
therefore, filed this Company Petition seeking winding up of the
respondent Company and the details of
the petitioner Company are admitted.
In
response to the notice issued by the Court, the respondent Company
is represented by learned advocate. On behalf of the company, a
reply has also been filed in which it is averred as under :
“6.
It is submitted that no activity on the part of the company is
going on. It is further submitted that the company is trying to
arrange the funds.”
The Profit
and Loss Account reflects the loss of Rs. 73,75,952/- for the year
ended 31.3.2010 and the Balance sheet reflects the accumulated loss
of Rs. 3,35,79,531/-.
From the
above, it is undisputed that the respondent Company
owes sizable amount to the petitioner Company which is due and
payable. Despite demand and statutory notice, there has been no
response from the respondent Company. In the affidavit filed before
this Court also, it is clearly stated that the Company is unable to
pay the debt.
The
petitioner has complied with directions issued by this Court vide
order dated 14.03.2011 and while admitting the petition and has also
published the notice in a two daily newspapers and accordingly the
affidavit dated 1st April, 2011 is
filed. Thereafter also there is no willingness on the part of the
respondent Company to pay the dues. It appears that the Company is
unable to perform its functions under the provisions of the
Companies Act, 1956 since it has lost its sub-stratum and
accordingly, it is ordered to be wound up. The matter was ordered
to be heard finally and accordingly the prayer of the petitioner is
accepted and the Official Liquidator is appointed as Official
Liquidator under the provisions of the Companies Act. The Official
Liquidator shall take charge of the assets and properties of the
Company in accordance with law.
Order
accordingly. The petition stands disposed of.
Sd/-
(Anant
S. Dave, J.)
Caroline
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