Guardian Laboratories Pvt Ltd. Vs. Yogesh Daftari - Court Judgment

Excerpt:
the court : there will be an order in terms of prayer (a) of the petition. this appeal is directed against an order passed by the hon'ble first court on april 26, 2010. on the basis of the facts and pleadings placed before the hon'ble first court, the hon'ble first court found that the company in its affidavit alleged that the bills and challans of the petitioner were not genuine and proper because the times which were supplied to the company, the quantities and rates were not properly fixed by agreeing between the parties prior to raising such bills. the statement would imply that the petitioner effected the supply to the company and the petitioner raised bills on the company which was duly received by the company.the company did not raise any objection with regard thereto and it further appears that notice was also served under section 434 of the companies act, 1956 since the company has failed and neglected to pay the debts of the petitioning creditor. in these circumstances, an application was filed for winding-up of the company in question and as a result whereof, after hearing the parties, the hon'ble first court came to the conclusion that there is no defense with regard to the claim of the petitioning creditor and as such the petition was admitted in the principal sum of rs.22,76,108.85 together with interest at the rate of 10% per annum from march 9, 2009 being the date of the statutory notice. it is also to be noted that the company did not even reply to the notice served upon the company on behalf of petitioning creditor under section 434 of the companies act, 1956. in these circumstances, the application for winding up was admitted. we have been informed that pursuant to the order so passed by his lordship, advertisement has already been published in the newspaper. mr. ghosh, learned advocate in support of the appeal contended that they do not have any objection to pay off the dues if some breathing time is granted to the appellant. accordingly, we direct the company to pay a sum of rs.12,00,000/- on or before the reopening day and the balance amount to be paid in two monthly installments. the first of such installment is to be paid on or before 07.12.2010 and thereafter on or before 07.01.2011. we make it clear that the cost of the advertisement of rs.17,000/- has to be paid by the company and the same should be paid along with the initial amount. there will be an unconditional stay to take further steps in the matter by the official liquidator and the stay of admission of the winding-up petition will continue till 07.11.2010. if the initial amount is paid as directed hereinabove, the stay will continue until full payment is made by the company, and in case such payment is fully paid by the company, the winding up petition will be permanently stayed. in default of payment of either the initial amount or any of the installments, the stay will be vacated and the petitioning creditor shall be at liberty to take steps in terms of the order already passed by the hon'ble first court and the order so passed by us in this appeal shall automatically stand vacated. the application is thus disposed of. undertakings are discharged. by consent of the parties the appeal is treated as on the days list and is disposed of on the above terms. all parties concerned are to act on a signed photocopy of this order on the usual undertakings. urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Judgment:
The Court : There will be an order in terms of prayer (a) of the petition. This appeal is directed against an order passed by the Hon'ble First Court on April 26, 2010.

On the basis of the facts and pleadings placed before the Hon'ble First Court, the Hon'ble First Court found that the company in its affidavit alleged that the bills and challans of the petitioner were not genuine and proper because the times which were supplied to the company, the quantities and rates were not properly fixed by agreeing between the parties prior to raising such bills.

The statement would imply that the petitioner effected the supply to the company and the petitioner raised bills on the company which was duly received by the company.

The company did not raise any objection with regard thereto and it further appears that notice was also served under section 434 of the Companies Act, 1956 since the company has failed and neglected to pay the debts of the petitioning creditor.

In these circumstances, an application was filed for winding-up of the company in question and as a result whereof, after hearing the parties, the Hon'ble First Court came to the conclusion that there is no defense with regard to the claim of the petitioning creditor and as such the petition was admitted in the principal sum of Rs.22,76,108.85 together with interest at the rate of 10% per annum from March 9, 2009 being the date of the statutory notice.

It is also to be noted that the company did not even reply to the notice served upon the company on behalf of petitioning creditor under section 434 of the Companies Act, 1956. In these circumstances, the application for winding up was admitted.

We have been informed that pursuant to the order so passed by His Lordship, advertisement has already been published in the newspaper. Mr. Ghosh, learned Advocate in support of the appeal contended that they do not have any objection to pay off the dues if some breathing time is granted to the appellant. Accordingly, we direct the company to pay a sum of Rs.12,00,000/- on or before the reopening day and the balance amount to be paid in two monthly installments.

The first of such installment is to be paid on or before 07.12.2010 and thereafter on or before 07.01.2011. We make it clear that the cost of the advertisement of Rs.17,000/- has to be paid by the company and the same should be paid along with the initial amount.

There will be an unconditional stay to take further steps in the matter by the Official Liquidator and the stay of admission of the winding-up petition will continue till 07.11.2010.

If the initial amount is paid as directed hereinabove, the stay will continue until full payment is made by the company, and in case such payment is fully paid by the company, the winding up petition will be permanently stayed.

In default of payment of either the initial amount or any of the installments, the stay will be vacated and the petitioning creditor shall be at liberty to take steps in terms of the order already passed by the Hon'ble First Court and the order so passed by us in this appeal shall automatically stand vacated. The application is thus disposed of.

Undertakings are discharged. By consent of the parties the appeal is treated as on the days list and is disposed of on the above terms.

All parties concerned are to act on a signed photocopy of this order on the usual undertakings.

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