ANDHRA CEMENTS LIMITED Vs. BHATIA INTERNATIONAL LTD

JUDGEMENT

(1.) THE appellant herein is a company registered under the provisions of the indian Companies Act, 1956 (for short herein after referred to as the Act) which has filed this appeal under section 483 of the Act read with Clause 15 of the letter Patent, inter-alia seeking to assail the orders of the learned Single judge in Company Petition No. 75 of 2006 dated 23. 1. 2007 by the learned Single judge admitting the company petition, filed under section 433 (f) and 439 of the act read with Rule 95 of the Companies (Court) Rules, 1956 seeking for winding up of the appellant company herein and for consequential appointment of provisional liquidator, and rejecting the objection raised on behalf of the appellant herein.

(2.) THE facts, though not in detail but which are necessary for the disposal of this appeal are that the appellant company was incorporated on 1. 11. 1936 and its registered office is situated at Chandralok Complex, S. D. Road, Secunderabad and its administrative office is situated at 6-3-903/b/1, Somajiguda, Hyderabad - 500 082. It deals in manufacture and sale of cement. Whereas, the first respondent herein is engaged in the business of trading in different types of imported and indigenous coal and supplies coal to different parts in India. In the normal course of business allegedly, it has supplied different types of coal to the appellant company in terms of the purchase orders made by the appellant company from time to time. Ultimately, according to the respondent No. 1, as per the latest statement of accounts, the appellant company is liable to pay a sum of Rs. 7,95,907/- with interest at 16% per annum commencing from 19. 11. 2002. Thus, with interest component the total amount payable comes to Rs. 10,55,830/ -. The second respondent herein is the sister concern of the first respondent engaged in the business of transportation of coal from ports to the customers of the first respondent. Accordingly, the second respondent stated to have rendered transportation services for supply of coal to various destinations as per the instructions of the appellant company. Thus, as per their latest statement of accounts, the appellant company is liable to pay a sum of Rs. 7,18,822/- with interest at 16% and total amount of which comes to Rs. 9,53,571/ -. The case of both the respondents in the application was that in spite of several reminders sent by them to pay the due amounts, there was no response and therefore the statutory notice as contemplated under Section 434 of the Act was issued to the appellant demanding the payment and failing which, appropriate action would be initiated. In the meanwhile, it was stated that the appellant has issued a letter dated 26. 6. 2006 admitting the dues to the tune of Rs. 12,00,000/- and agreed to issue post dated cheques. However, since nothing is forthcoming, the company has filed the application seeking for winding up of the appellant company.

(3.) CONTESTING the claim of the respondents herein, the appellant filed a detailed counter affidavit raising several issues, apart from denying the entire allegations made in the application. It was contended that having regard to the fact that the appellant company is sick industrial company and a scheme having been formulated by BIFR, which is under implementation and in view of the provisions of section 22 of the Sick Industrial Companies (Special provisions) Act, 1985, no further proceedings can be initiated against the appellant and therefore the very application is liable to be dismissed. Further, it was the main objection on behalf of the appellant company that its registered office is not situated at the address mentioned by the respondent but its registered office is situated at Sri Durga Cement Works, Sri Durgapuram, guntur district, Andhra Pradesh since its inception, of which, the respondents are fully aware and therefore no notice has been served to such registered office, but only sent to other addresses as mentioned by the respondents. There is a clear violation in fulfilling the mandatory requirement under Section 434 of the Act, since the notice was not sent to the registered office, therefore the very application is liable to be dismissed.