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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE COMPANY PETITION NO. 66 OF 2014 A/W COMPANY APPLICATION NO.591 OF 2014 COMPANY APPLICATION NO.592 OF 2014 COMPANY APPLICATION NO.593 OF 2014 IN COP NO.66/2014:
BETWEEN:
M/S INDIA FACTORING AND FINANCE SOLUTIONS PVT. LTD., VAIBHAV CHAMBERS, 6TH FLOOR, OPP INCOME TAX OFFICE, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI - 400 051, REPRESENTED BY MR.LALATENDU ACHARYA, SENIOR MANAGER (COMPLIANCE), AND AUTHORIZED SIGNATORY. …PETITIONER (BY SRI MANOJ K, ADVOCATE FOR SRI MAHABALESHWAR CHITRIGEMATH, ADVOCATE)
AND:
CEAARS SPECIALITY FOODS PRIVATE LIMITED, REP. BY MR.CHENNIAPPAN RAMACHANDRAN ITS DIRECTOR, REGISTERED OFFICE AT NO.171, 2ND FLOOR, BRIGADE ROAD, BANGALORE - 560 001. …RESPONDENT (BY SRI S ISMAIL ZABIULLA, ADVOCATE)
THIS COMPANY PETITION IS FILED UNDER SECTION 433[E] & [F] R/W SECTION 434 OF THE COMPANIES ACT,
Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
1956, PRAYING TO WIND UP THE RESPONDENT COMPANY, I.E., CEAARS SPECIALITY FOODS PRIVATE LIMITED., NO.171, 2ND FLOOR, BRIGADE ROAD, BANGALORE - 560001, IN ACCORDANCE WITH THE PROVISIONS OF THE COMPANIES ACT, 1956 AND THE OFFICIAL LIQUIDATOR ATTACHED TO THIS HON'BLE COURT BE APPOINTED LIQUIDATOR OF THE COMPANY AND ALL ITS ASSETS, BUSINESS, AFFAIRS, PROPERTY, BANK ACCOUNTS, BOOKS OF ACCOUNTS, VOUCHERS, FILE, DOCUMENTS ETC., WITH ALL POWERS UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956.
IN CA NO.591/2014:
BETWEEN: [ M/S INDIA FACTORING AND FINANCE SOLUTIONS PVT. LTD., VAIBHAV CHAMBERS, 6TH FLOOR, OPP INCOME TAX OFFICE, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI - 400051, REPRESENTED BY MR.LALATENDU ACHARYA, SENIOR MANAGED (COMPLIANCE) AND AUTHORIZED SIGNATORY. …APPLICANT
(BY SRI MANOJ K, ADVOCATE FOR SRI MAHABALESHWAR CHITRIGEMATH, ADVOCATE)
AND:
CEAARS SPECIALITY FOODS PRIVATE LIMITED, REP. BY MR.CHENNIAPPAN RAMACHANDRAN, ITS DIRECTOR REGISTERED OFFICE AT NO.171, 2ND FLOOR, BRIGADE ROAD, BANGALORE - 560 001. …RESPONDENT
(BY SRI S ISMAIL ZABIULLA, ADVOCATE)
THIS COMPANY APPLICATION IS FILED UNDER SECTION 450 OF COMPANIES ACT, 1956 PRAYING TO APPOINT THE OFFICIAL LIQUIDATOR ATTACHED TO THIS HON'BLE COURT OR SOME OTHER FIT AND PROPER PERSON BE APPOINTED AS
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
A PROVISIONAL LIQUIDATOR OF THE COMPANY, THE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, ALL ITS ASSETS, BUSINESS, AFFAIRS, PROPERTY, BANK ACCOUNTS, BOOK OF ACCOUNTS, VOUCHERS, FILES DOCUMENTS ETC., WITH ALL POWERS UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, IN THE INTEREST OF JUSTICE AND EQUITY.
IN CA NO.592/2014:
BETWEEN:
M/S INDIA FACTORING AND FINANCE SOLUTIONS PVT. LTD., VAIBHAV CHAMBERS, 6TH FLOOR, OPP INCOME TAX OFFICE, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI - 400051, REPRESENTED BY MR.LALATENDU ACHARYA, SENIOR MANAGED (COMPLIANCE) AND AUTHORIZED SIGNATORY. …APPLICANT
(BY SRI MANOJ K, ADVOCATE FOR SRI MAHABALESHWAR CHITRIGEMATH, ADVOCATE)
AND:
CEAARS SPECIALITY FOODS PRIVATE LIMITED, REP. BY MR.CHENNIAPPAN RAMACHANDRAN, ITS DIRECTOR, REGISTERED OFFICE AT NO.171, 2ND FLOOR, BRIGADE ROAD, BANGALORE - 560 001. …RESPONDENT
(BY SRI S ISMAIL ZABIULLA, ADVOCATE)
THIS COMPANY APPLICATION IS FILED UNDER ORDER XXXIX RULE 1 AND 2 OF THE CODE OF CIVIL PROCEDURE R/W SECTION 434 OF THE COMPANIES ACT 1956, PRAYING TO PASS AND ORDER OF INJUNCTION RESTRAINING THE COMPANY ITS DIRECTORS, OFFICERS, SERVANTS AND AGENTS FROM ALIENATING, ENCUMBERING, DEALING WITH,
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
DISPOSING OF, CREATING OR EXTENDING ANY THIRD PARTY INTERESTS IN OR OVER THE ASSETS OF THE COMPANY, INCLUDING BY ENTERING INTO ANY TRANSACTIONS WITH OTHER BANKS OR FINANCIAL INSTITUTIONS OR IN ANY OTHER MANNER WHATSOEVER, IN THE INTEREST OF JUSTICE AND EQUITY.
IN CA NO.593/2014: BETWEEN:
M/S INDIA FACTORING AND FINANCE SOLUTIONS PVT. LTD., VAIBHAV CHAMBERS, 6TH FLOOR, OPP INCOME TAX OFFICE, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI - 400051, REPRESENTED BY MR.LALATENDU ACHARYA, SENIOR MANAGED (COMPLIANCE) AND AUTHORIZED SIGNATORY. …APPLICANT
(BY SRI MANOJ K, ADVOCATE FOR SRI MAHABALESHWAR CHITRIGEMATH, ADVOCATE)
AND:
CEAARS SPECIALITY FOODS PRIVATE LIMITED, REP. BY MR.CHENNIAPPAN RAMACHANDRAN, ITS DIRECTOR, REGISTERED OFFICE AT NO.171, 2ND FLOOR, BRIGADE ROAD, BANGALORE - 560 001. …RESPONDENT
(BY SRI S ISMAIL ZABIULLA, ADVOCATE)
THIS COMPANY APPLICATION IS FILED UNDER SECTION 9 OF COMPANY COURT RULES PRAYING TO PENDING ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, THE RESPONDENT COMPANY BE ORDERED TO DEPOSIT THE SUM OF RS.1,54,62,855.54/- (RUPEES ONE CRORE FIFTY FOUR LACS SIXTY TWO THOUSAND EIGHT HUNDRED FIFTY FIVE AND PAISE FIFTY FOUR ONLY) TOGETHER WITH FURTHER INTEREST THEREON FROM 1ST
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
AUGUST 2013 TILL THE DATE OF DEPOSIT WITH THIS HON'BLE COURT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION AND APPLICATIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard the learned counsel appearing for the petitioner. There is no representation for the respondent.
The Petition is filed invoking Section 433 (e) and (f) read with Section 434 of Companies Act, 1956 (for short hereinafter referred to as 'the Act of 1956'). The petitioner is a non-banking financial institution registered under the Act of 1956. Respondent is a private limited Company registered under the Act of 1956.
The petitioner claims that it has lent Rs.2 crores as a loan to the respondent-Company and the loan facility was sanctioned dated 25.11.2011. The copy of the said letter is marked at Annexure-D. It is also the case of the petitioner that the respondent on 01.12.2011 has entered into an agreement relating to repayment and copy of the said agreement at Annexure-E. The petitioner further claims that the respondent has executed demand promissory note and delivery letter which
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
are marked at Annexures-F and G. The petitioner alleges that despite the agreement between the parties to repay the amount in terms of the agreed terms and conditions, the respondent has failed to repay the amount and has defaulted.
It is the claim of the petitioner that as per the statement of accounts maintained by the petitioner-Company in its normal course of business Rs.1,54,62,855.54/- was due to the petitioner-Company as on 01.08.2013.
It is further claimed that the petitioner has issued a statutory demand notice dated 27.08.2013 under Section 434 of the Act of 1956. The petitioner has produced copy of the notice as well as the acknowledgment. It is further stated that despite expiry of 21 days from the date of the receipt of the statutory notice, the respondent has failed to repay the amount.
Under circumstances referred to above, the petitioner has filed the petition to wind-up the respondent- Company in accordance with the provisions of the Act of 1956 and to entrust the Assets and Liabilities of the Official
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
Liquidator attached to this Court to proceed further in accordance with the provisions of the Act of 1956.
This Court after noticing the prima facie case made out by the petitioner has admitted the petition vide order dated 16.06.2022. Pursuant to the said order, paper publications have been taken-out. No other claim petitions or objections are filed. It is also relevant to note that respondent though appeared through advocate has not chosen to file statement of objection.
Learned counsel for the petitioner invited the attention of this Court to the documents relating to the sanction of loan and demand promissory note executed by the respondent and the demand notice issued under Section 434 of the Act of 1956, and also invited the attention of this Court to the settlement entered into between the petitioner and the respondent which is recorded on 28.02.2020. Copy of the said agreement is produced by the respondent. In the said agreement, it is noticed that the respondent has admitted that Rs.5,39,59,451.58/- is due to the petitioner as on 31.12.2019.
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
It is also forth coming from the said agreement that the respondent agreed to pay Rs.40 lakhs and has issued 4 cheques towards repayment of the said amount.
Learned counsel for the petitioner would point out that the cheques issued by the respondent in terms of the said agreement have been dis-honoured and the petitioner has filed a complaint under Section 138 of Negotiable Instruments Act to enforce the liability against the respondent. Referring to these factors, it is submitted that the transaction is admitted and the liability is admitted and the fact that the requirement under Section 438 have been duly complied and given the fact that there is no statement of objection filed by the respondent denying the statement made in the petition, the learned counsel would submit that case is made out for passing an order to wind-up the respondent-Company in accordance with the provisions of the Act of 1956.
This Court has considered the contentions raised at the bar and also perused the records.
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
As could be seen from the records, the petitioner Company has lent loan to the respondent and the respondent in-turn has executed an agreement agreeing to repay the loan amount along with the interest and has also executed the demand promissory note, as could be seen from the statement of accounts produced by the petitioner, the respondent is in arrears. The petitioner has issued the demand notice as contemplated under Section 434 of the Act of 1956 to the said notice, there is no response and in addition to that as rightly contended by the learned counsel for the petitioner submits that respondent himself in his memo dated 30.06.2021 has produced the settlement agreement between the petitioner and the respondent where the respondent agreed to repay the amount accepting the concession offered by the petitioner. In the said agreement, transaction and liability is admitted. However, the payment as promised under the agreement is not paid. Under these circumstances, this Court is of the view that the petitioner has made out a case for wound-up the respondent-Company.
Hence, the following:
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
ORDER (i) The respondent-Company is ordered to be wind-up.
(ii) The Official Liquidator attached to this Court is appointed as the Official Liquidator and shall take charge of the Assets and Liabilities of the respondent-Company and shall proceed further in accordance with the provisions of the Act of 1956.
(iii) The petitioner shall deposit Rs.25,000/- towards initial expenses before the Official Liquidator required to comply the order.
(iv) The petitioner shall publish the copy of this order in English newspaper having wide circulation through out India and also in Kannada newspaper having wide circulation through out the State of Karnataka within 15 days.
(v) The petitioner shall also send a copy of this Order to the Registrar of the Companies.
(vi) The petitioner shall file a report of compliance within 4 weeks before the Registry.
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NC: 2024:KHC:250 COP No. 66 of 2014 A/W CA No.591 of 2014 CA No.592 of 2014 CA No.593 of 2014
(vii) Accordingly, the Company Petition is allowed.
Since the Company Petition is allowed, all pending Company Applications does not survive for consideration.
Sd/- JUDGE
GVP List No.: 1 Sl No.: 23