CAPRIHANS INDIA LIMITED Vs. MEYS PHARMACEUTICALS

JUDGEMENT

(1.) M/s Caprihans India Ltd. filed a petition for winding up against M/s Mey's Pharmaceuticals Pvt. Ltd.(hereinaftercalled the Company), under Section 433, 434 read with Section 439 of the Companies Act, 1956 (hereinaf- ter called the Act). Facts in brief are that the petitioner is carrying on business of manufacturing and supplying of Sunblis Thermoforming Foils which is used in pharmaceutical trade. The company placed order for the supply of Sunblis Rigid PVC Thermoforming Foil of different specifications to the petitioner. Petitioner' supplied the material as ordered and raised various invoices of the Company for payment amounting to Rs. 48,815.95P. The Company in response to those three invoices issued three cheques bearing No. 037276 dated 22.7.90 for Rs. 21.526.03P, drawn on Allahabad Bank and Cheques No. 037398 and 037465 dated 30.8.90 and I.I 1.90 for Rs. 7,687.87 and Rs. 3,000.00 respectively, drawn on the same bank. The said cheques upon presentation were dishonoured with the remarks 'Exceeds Arrangement'. Company was informed by the petitioner about the dishonouring of the cheque. The company in response to the said letter of the petitioner paid sum of Rs. 3,000.00 in cash on 15.11.90 and Rs. 2.000.00 on 20.12.90. Further cheques of Rs. 3,815.25? and Rs. 3.000.00 bearing No. 879078 and 881075 respectively were issued and also a demand draft of Rs. 3,000.00 . Thus the company paid a sum of Rs. 14815.95P as against Rs. 48,815.95P. The balance amount of Rs. 34,000.00 has not been paid inspite of reminders. Ultimately the statutory notice was issued. In response to the said notice the Company sent a demand draft of Rs. 5,000.00 on 11.9.91 but the balance amount of Rs. 29,000.00 still remained unpaid. Hence another statutory notice was issued on 31.7.91. But, thereafter, the respondent- company has not made payment of the balance amount. The respondent-company is not in a position to make the payment and is infact insolvent.

(2.) Notice of this petition was issued which was duly served on the respondent. After service of the notice, the respondent-company, according to the petitioner sent a bank draft of Rs. 9,000.00 on 27.3.92 leaving a balance of Rs. 20,000.00 . Since inspite of service respondent did not put in appearance, therefore, the case was renotified for 27.7.92 on which date again no one put in appearance, with the result this Court admitted the petition to hearing. The citation was ordered to be deferred. Fresh notice was ordered to be issued to the Company for 13.11.92. The affidavit of service was filed which shows that the respondent- company was duly served by registered post of the notice of admission of the petition but despite that there has not been any appearance on behalf of the respondent. It was in these circumstances that the citation was ordered to be issued for 23.9.93 in daily newspaper 'Statesman' (English), 'Jansatta' (Hindi) and Delhi Gazette. The citation appeared in the Delhi Gazette on 17.6.93 and in the 'Statesman' (English) and 'Jansatta' (Hindi) on 28.8.93. But inspite of the publication of the citation no one put in appearance on behalf of the company. The company was accordingly proceeded ex-parte. Ex-parte evidence by way of affidavit was filed by the petitioner. Arguments heard and evidence perused, from the perusal of the affidavit of Shri R.P. Jain, Accounts Manager of M/s Caprihans India Ltd., it is amply clear that the respondent-company purchased the Sunblis Rigid PVC Thermo forming Foils. The invoices in this regard are exhibited as Exs. PI to P3, Three cheques issued in favour of the petitioner and on presentation dishonoured are Exs. P4 to P6. After the cheques were dishonoured, a letter was written on 21.10.90, explaining the position and the same has been proved on record as Ex. P7. In response to the said letter, the respondent-company made payment by cheque, cash as well as by bank draft. Notice served through the lawyer dated 31.7.90 has been proved as Ex. P8, postal receipts and AD cards are Exs. P9 and P10 respectively. The bank draft sent with the letter dated 11.9.91 has been proved as Ex. P-11. Statement of account is Ex. P12. Ex. P12 shows that as on the date of filing of the petition an amount of Rs. 29,000 / - was due. After this Court issued show cause notice a demand draft of Rs. 9,000.00 was paid vide Ex. P13. It is also in the testimony of Mr. Jain that the respondent-company has shifted its registered office to WZ-112, Meenakshi Garden, Near P.S. Tilak Nagar, New Delhi, and is not in a position to pay its debts, due to the petitioner, amounting to Rs. 20,000.00 . Inspite of statutory notice having been received by the company, the company has failed to discharge its debts. According to Mr. Jain the company is insolvent and is unable to pay the amount due.

(3.) From the perusal of the documentary evidence placed on record, it is proved that there is subsisting debt payable by the respondent-company to the petitioner. The factum of respondent being aware of the fact that the amount is still due has been established on record. The pendency of the petition is also known. Inspite of the same, the company has not paid Rs. 20,000.00 which shows that it is not in a position to discharge its debts and is not financially sound. Therefore, I hold that the respondent-company is not financially solvent to discharge its debt. Hence it is a fit case where the company should be ordered to be wound up. Ordered accordingly.The Official Liquidator attached to this Court is hereby appointed as the liquidator who will take over the assets of the company forthwith.