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COMP/170/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 170 of 2009
With
COMPANY
PETITION No. 255 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DOTCAD
PRIVATE LIMITED - Petitioner(s)
Versus
ADVANTAGE
GLOBAL BPO PRIVATE LIMITED - Respondent(s)
=========================================================
Appearance
:
MR
TS NANAVATI for
Petitioner(s) : 1,
MS MOXA G THAKKER for Respondent(s) : 1,
MR
ANVESH V VYAS for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 03/05/2010
ORAL
JUDGMENT
As
both these petitions are filed for an appropriate order of winding
up of one common respondent Company – ADVANTAGE GLOBAL BPO PRIVATE
LIMITED, both these petitions are disposed of by this common
judgement and order. Company Petition No.170 of 2009 is filed by the
petitioner – DOTCAD PRIVATE
LIMITED – under sec.433 read with sec.434 of the Companies Act,
1956 for an appropriate order of winding up of the respondent
Company – ADVANTAGE GLOBAL BPO PRIVATE LIMITED. Similarly, Company
Petition No.255 of 2009 is filed by the petitioner
VISHWA OFFICE SYSTEM, a proprietorship concern under sec.433
read with sec.434 of the Companies Act, 1956 for an appropriate
order of winding up of the respondent Company – ADVANTAGE GLOBAL BPO
PVT.LTD.
It
is the case on behalf of the petitioner
of Company Petition No.170 of 2009 namely DOTCAD PRIVATE
LIMITED that the said petitioner
provided Desktop Computers and Servers/Peripherals to the respondent
Company for a total amount of Rs.53,65,621=00 and the respondent
Company paid part payment of Rs.28,65,620=00 and the balance amount
of Rs.25,00,001=00 still remained due and payable at the end of the
respondent Company. It is the further the case on behalf of the said
petitioner that towards the
aforesaid dues of Rs. 25,00,001=00, the respondent Company issued
four cheques amounting to Rs.24,21,871=00, however when the said
four cheques were deposited in the Bank, all the four cheques had
dishonoured and thereafter again fresh cheques were issued which
were again deposited, however, the same were again dishonoured and
returned by the bank with endorsement of fund insufficient .
It is further the case of the said petitioner
that thereafter the said petitioner
again issued statutory notice, however, the respondent
Company has not paid the amount of Rs. 25,00,001=00 to the said
petitioner and therefore,
the said petitioner has
preferred Company Petition No.170 of 2009.
It
is the case on behalf of the petitioner
of Company Petition No.255 of 2009 namely VISHWA OFFICE
SYSTEM, that an amount of Rs.24,84,943=00 is due and payable by the
respondent Company to the said petitioner
and despite several reminders and even after service of
statutory notice, the said amount has not been paid and the cheques
which were issued, have been dishonoured.
It
is submitted by the learned advocate appearing on behalf of the
respective petitioners that the respondent Company has failed to
make the payment of the amount due and payable to the respective
petitioners and as such the respondent Company is not in a
position to pay the amount due and payable by the respondent Company
to the respective petitioners,
looking to its financial condition. It is submitted that the
respondent Company is not a running Company and is not viable and
has lost its substratum. It is submitted that there are other
various creditors also. Therefore, it is requested to pass
appropriate order of winding up the respondent Company and appoint
the Official Liquidator.
Admission
of the respective petitions have been advertised in local news paper
as per the orders passed by this Court. There is no reply filed by
the respondent Company to the present petitions. The liability to
pay the amount due and payable to the petitioners has not been
denied and/or disputed. The allegations that the respondent Company
is not in a position to pay the debt to the petitioner
as well as other creditors is not disputed by the
respondent Company. Nothing has been pointed out to show that the
respondent Company is viable running Company and/or its financial
position is such that it can pay its debts.
In
view of the above, it appears that the respondent Company has lost
its substratum and is not in a position to pay its debt to its
creditor and therefore, the respondent Company is required to be
ordered to be wound up.
In
view of the above, both the petitions succeed and the respondent
Company – ADVANTAGE GLOBAL BPO PRIVATE LIMITED is hereby directed
and ordered to be wound up. The Official Liquidator attached with
this Court is hereby appointed as Official Liquidator for the
respondent Company. The Official Liquidator is hereby directed to
take possession of the properties (movable and immovable) of the
respondent Company along with its Bank Accounts, cash, Account Books
etc. forthwith. The Official Liquidator shall submit its report
within a period of three months. If required, he can take service
of the official valuer for the purpose of preparation of the
possession note etc. In the facts
and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.]
rafik
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