ANURAG PURI GOSWAMI Vs. SUMATEX LIMITED

JUDGEMENT

(1.) This Company Petition under Sec. 433 read with Ss. 434 and 439 of Companies Act, 1956 (for short "the Act") has been filed by the petitioner seeking winding up of the respondent Company -Sumatex Limited (for short "Respondent Company"), on the grounds as specified under Clause (e) and (f) of Sec. 433 of the Act.

(2.) The facts relevant are that pursuant to the resolution adopted by the Board of Directors of the Respondent Company in its meeting held on 25.6.11, the petitioner was appointed as Company Secretary of the Respondent Company. Accordingly, the particulars of appointment were submitted by the Respondent Company to the Registrar of Companies in the prescribed Form No. 32. The petitioner intending to pursue further studies tendered his resignation on 7.8.12. According to the petitioner, the resignation submitted was not accepted and he continued to work with the Respondent Company as Company Secretary. The Respondent Company has paid salary to the petitioner upto January, 2013. The petitioner requested the Respondent Company to release his salary since February, 2013 by way of numerous e -mails, but to no avail. The petitioner served the Managing Director of the Respondent Company with the registered letter dated 10.7.13 requesting to clear his arrear of salary for the period February, 2013 to July, 2013. The notice served was not responded, in these circumstances, the petitioner sent a legal notice through his counsel calling upon the Respondent Company to pay a sum of Rs. 1,58,355/ - towards the salary for the month from February, 2013 to July, 2013. The notice was responded by the Respondent Company vide reply dated 8.8.13, taking the stand that the resignation of the petitioner was accepted and he was permitted to leave the company after a month. According to the petitioner, he was continued in service and was authorized to sign the Audited Balance Sheet and Profit and Loss Account of financial year 2011 -12 on behalf of the Respondent Company as per Sec. 215 (1) (ii) of the Act on 6.9.12 and thereafter, the petitioner was authorized to sign Annual Return of the company on behalf of the Board of Directors as per Sec. 159 of the Act on 29.9.12. It is submitted that a perusal of the reply to the notice of the Respondent Company, makes it clear that the petitioner was working with them at least till 28.3.13. According to the petitioner, non -payment of salary for the period February, 2013 to July, 2013 falls within the definition of "debts" and the Respondent Company having failed/neglected to pay the outstanding dues of the petitioner, it has to be presumed that the Respondent Company is unable to pay its debts. It is submitted that the financial condition of the Respondent Company is not good and with a view to defeat the claims of the creditors including that of the petitioner, the Respondent Company is in process of disposing off and/or siphoning its assets. Accordingly, it is contended that the Respondent Company is liable to be wound up under the provisions of Clause (e) and (f) of Sec. 433 of the Act.

(3.) A reply to the company petition has been filed on behalf of the Respondent Company raising preliminary objection in terms that there is no admitted liability of the Respondent Company and the question with regard to outstanding salary, if any, cannot be adjudicated by the Company Court. It is submitted that the petitioner who was associated with the Respondent Company in a defined capacity cannot claim himself to be creditor of the company. Replying to the averments made in the company petition, the Respondent Company has taken the stand that the petitioner has resigned from services since September, 2012 and therefore, no salary is due. It is submitted that the petitioner continued to visit company premises intermittently in the name of finishing pending projects and/or for completing formalities up -till January, 2013. It is stated that the petitioner did not submit the Form No. 32, and therefore, the Respondent Company itself submitted the Form No. 32 before the Registrar of the Companies which is placed on record as Annexure -R/2. It is submitted that after having resigned from the Respondent Company, the petitioner had already been employed by another company as Company Secretary. According to the Respondent Company, the petitioner was paid salary till January, 2013 in the hope that the petitioner would complete the formalities like requirement of filing Form No. 32 after resignation. It is submitted that on account of delayed statutory compliance which is caused on account of malafide omission of the petitioner, the Respondent Company has suffered penalty. The factum of the financial condition of the Respondent Company being not good, is specifically denied. It is also denied that the Respondent Company is in the process of disposing off and/or siphoning its assets and the creditors of the Respondent Company are facing any kind of liquidity crunch or otherwise. It is submitted that Bank of Baroda has sanctioned additional term loan to the Respondent Company for expansion.