ORDER
A.M. Sapre, J.
1. This is a company petition filed under Section 433(e) and (f) of the Companies Act seeking winding up of the respondent company known as Kedia Distilleries Ltd. The winding up is sought essentially on the ground that respondent company is unable to pay admitted debt of the petitioner company to the tune of Rs. 1,71,43,173 despite repeated demand made by the petitioner company as contemplated under Section 434 of the Companies Act. The petition then avers the necessary facts duly supported by the documents to show that the debt alleged against the respondent company is established on facts and that it is subsisting on the date of presentation of winding up petition. The respondent on being noticed filed reply but there is nothing to indicate that the debt in question is neither disputed nor denied nor not found payable. In other words, there is nothing on record for coming to a conclusion that the petitioner has failed to established the debt payable by the respondent.
2. Heard Shri S.C. Bagadia, learned senior counsel with Shri P. Bagadia for the petitioner and Shri A.M. Mathur, learned senior counsel with Shri Shrivastava for the respondent.
3. Having heard the learned counsel for the parties and having perused the record of the case — I am of the considered opinion that the petitioner has made out a case for winding up the respondent company within the meaning of Section 433(e) of the Act.
4. It is not in dispute that this court admitted this petition on 5.5.2000 and further directed advertisement of the petition in terms of the Companies (Court) Rules. It is now a matter of record that even prior to advertisement as many as 21 creditors had already filed the petition for winding up of respondent company on the ground under Section 433(e) of the Act. All these petitions are also founded on the same allegations that the respondent company has failed to pay their respective individual debts. These petitions are filed by the secured creditors such as banks and financial institutions as also by some unsecured creditors. However, even in these petitions, the respondent could not dispute their debts on any substantial grounds. Indeed, even these debts are admitted. These debts if consolidated together works out to crores of rupees.
5. It is not in dispute that the respondent company has closed their business activity. Indeed, this position/fact was admitted by the counsel appearing for the respondent in his submission. The closure of running business coupled with the fact that there are no grounds for revival of business itself indicate that respondent company is unable to pay/liquidate any of the debts.
6. When there is no business activity, when there are huge outstanding dues payable by the company, and yet, company has not submitted any proposal much the less viable proposal for its repayment, there is a prima facie case established for winding up of the company. In fact, it is a case where the substraction [substratum ?] of company has gone totally and liabilities have crossed the assets. The respondent company has not made any statement in regard to running of business in future on a profitable basis.
7. I am, therefore, satisfied that a case under Section 433(e) as also under Section 433(f) of the Companies Act is made out. As a consequence, the respondent company is directed to be wound up in terms of the requirement of the Companies Act.
8. Let the matter be listed for passing appropriate order in relation to appointment of Official Liquidator under the Companies (Court) Rules for taking custody of the company’s assets. List on 30.1.04.
30.01.04
9. Parties through counsel.
10. On 27 January, 2004, this court was pleased to direct winding up of the respondent/company, i.e., Kedia Distilleries Ltd., having their registered office at 160, Kanchan Bagh, Indore.
11. In terms of rule 109 of the Companies (Court) Rules, 1959, the Registrar of this court is hereby directed to send an intimation to the Official Liquidator of the court in Form No. 50/51 and send a copy of the petition along with the affidavit as per rules, intimating, inter alia, that a winding up order has been passed by this court on 23 January, 2004. The Official Liquidator of this court is hereby authorised to take/obtain possession of the company’s all assets, properties, etc., whenever [wherever] they are situated, to enable this court to proceed ahead in the matter. The Official Liquidator is also authorised to keep/post sufficient number of security guards for safeguarding/ preserving the properties of the company.
