Mr. Manik Das, Ad Vs. …for the Petitioner in Cp 475/2013 - Court Judgment

SooperKanoon Citationsooperkanoon.com/1136057
CourtKolkata High Court
Decided OnMar-25-2014
JudgeNADIRA PATHERYA
AppellantMr. Manik Das, Ad
Respondent…for the Petitioner in Cp 475/2013
Excerpt:
order sheet cp no.191 of 2013 cp no.145 of 2012 cp no.160 of 2012 cp no.475 of 2013 in the high court at calcutta original jurisdiction original side in the matter of : prateek plastometals pvt.ltd.-andshining vyapar pvt.ltd.& ors.before: the hon'ble justice patherya date : 25th march, 2014. ms.manju agarwal, adv.mr.niladri khanra, adv.…for the petitioner in cp1602012 mr.reetobroto mitra, mr.manik das, adversus …for the petitioner in cp4752013 mr.moinak bose, mr.pratyush patwari, adversus …for the petitioner in cp1452012 mr.anirban roy, adv.…for the company mr.saunak sengupta, mr.varun kedia, adversus …for m/s.steel metals ms.madhu priya, adv.…for sagun enterprises p. ltd.the court : in c.p.145 of 2012 an order was passed on 7th december, 2012 whereby the said company petition was admitted for the sum mentioned in the said order along with interest. this order was on the basis of the principal claim of the petitioning creditor being admitted by the company and directions sought by the company to make payment by easy instalments, which instalments was granted. in default of payment of any one instalment, liberty was given to the petitioning creditor to advertise. default was committed and advertisement was published. at the post advertisement stage supporting creditors have appeared. direction was also given by order dated 20th june, 2012 for filing affidavits at the post advertisement stage. such time was extended from time to time. in spite of extension granted, no affidavit has been filed at the post advertisement stage by the company. therefore admittedly the company has no defence to the claim of the petitioning creditor which in any event on 7th december, 2012 was admitted. the order of 7th december though challenged in appeal was not interfered with except for the increase in instalments granted to the company. in c.p.160 of 2012 pursuant to the order of june, 2013 which has been wrongfully mentioned as june, 2012 an affidavit has been filed by the company in february, 2014 at the post advertisement stage. the only plea taken therein is with regard to the proceedings pending before the bifr which proceedings have been rejected by order dated 18th february, 2014. therefore besides the aforesaid no other plea disputing the claim of the petitioning creditor has been taken by the company in such affidavit filed. it has been submitted by counsel for the company that out of the initial sum of rs.42 lakh the petitioning creditor in c.p.160 of 2012 has accepted an amount less than the amount specified in its statutory notice. this may be true but the order by which c.p.160 of 2012 is admitted was challenged in appeal and the order passed by the trial court has been upheld. therefore this contention of the company cannot be accepted at this stage. the defence taken by the company in its affidavit filed in c.p.160 of 2012 has also been taken in c.p.475 of 2013 and for the same reasons as set out above the defence of the company cannot be accepted. in c.p.191 of 2013 by order dated 7th june, 2013 the company petition was admitted. no appeal has been filed from the said order nor has any affidavit been filed at the post advertisement stage by the company. therefore the company has no defence to the claim of the petitioning creditor, and the inability of the company to pay its debt is evident. accordingly, let the company be wound up. the official liquidator is directed to forthwith take possession of the assets, properties, books, records and documents of the company now in liquidation. the supporting creditors in c.p.145 of 2012, c.p.475 of 2013 and c.p.191 of 2013 will be at liberty to file their respective claims before the official liquidator. urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (patherya, j.) tr/
Judgment:

ORDER

SHEET CP No.191 of 2013 CP No.145 of 2012 CP No.160 of 2012 CP No.475 of 2013 IN THE HIGH COURT AT CALCUTTA Original Jurisdiction ORIGINAL SIDE IN THE MATTER OF : PRATEEK PLASTOMETALS PVT.LTD.-ANDSHINING VYAPAR PVT.LTD.& ORS.BEFORE: The Hon'ble JUSTICE PATHERYA Date : 25th March, 2014.

Ms.Manju Agarwal, Adv.Mr.Niladri Khanra, Adv.…for the petitioner in CP1602012 Mr.Reetobroto Mitra, Mr.Manik Das, Adversus …for the petitioner in CP4752013 Mr.Moinak Bose, Mr.Pratyush Patwari, Adversus …for the petitioner in CP1452012 Mr.Anirban Roy, Adv.…for the company Mr.Saunak Sengupta, Mr.Varun Kedia, Adversus …for M/S.Steel Metals Ms.Madhu Priya, Adv.…for Sagun Enterprises P.

LTD.The Court : In C.P.145 of 2012 an order was passed on 7th December, 2012 whereby the said company petition was admitted for the sum mentioned in the said order along with interest.

This order was on the basis of the principal claim of the petitioning creditor being admitted by the company and directions sought by the company to make payment by easy instalments, which instalments was granted.

In default of payment of any one instalment, liberty was given to the petitioning creditor to advertise.

Default was committed and advertisement was published.

At the post advertisement stage supporting creditors have appeared.

Direction was also given by order dated 20th June, 2012 for filing affidavits at the post advertisement stage.

Such time was extended from time to time.

In spite of extension granted, no affidavit has been filed at the post advertisement stage by the company.

Therefore admittedly the company has no defence to the claim of the petitioning creditor which in any event on 7th December, 2012 was admitted.

The order of 7th December though challenged in appeal was not interfered with except for the increase in instalments granted to the company.

In C.P.160 of 2012 pursuant to the order of June, 2013 which has been wrongfully mentioned as June, 2012 an affidavit has been filed by the company in February, 2014 at the post advertisement stage.

The only plea taken therein is with regard to the proceedings pending before the BIFR which proceedings have been rejected by order dated 18th February, 2014.

Therefore besides the aforesaid no other plea disputing the claim of the petitioning creditor has been taken by the company in such affidavit filed.

It has been submitted by counsel for the company that out of the initial sum of Rs.42 lakh the petitioning creditor in C.P.160 of 2012 has accepted an amount less than the amount specified in its statutory notice.

This may be true but the order by which C.P.160 of 2012 is admitted was challenged in appeal and the order passed by the Trial Court has been upheld.

Therefore this contention of the company cannot be accepted at this stage.

The defence taken by the company in its affidavit filed in C.P.160 of 2012 has also been taken in C.P.475 of 2013 and for the same reasons as set out above the defence of the company cannot be accepted.

In C.P.191 of 2013 by order dated 7th June, 2013 the company petition was admitted.

No appeal has been filed from the said order nor has any affidavit been filed at the post advertisement stage by the company.

Therefore the company has no defence to the claim of the petitioning creditor, and the inability of the company to pay its debt is evident.

Accordingly, let the company be wound up.

The Official Liquidator is directed to forthwith take possession of the assets, properties, books, records and documents of the company now in liquidation.

The supporting creditors in C.P.145 of 2012, C.P.475 of 2013 and C.P.191 of 2013 will be at liberty to file their respective claims before the Official Liquidator.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(PATHERYA, J.) TR/