MR TAM TAM PEDDA GURUVA REDDY v. JAANSI SAMPARK CONSULTANCY PVT LTD

JAANSI SAMPARK CONSULTANCY PVT LTD A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT NO.187, BEML LAYOUT, BASAVESHWARANAGAR, BANGALORE-560 076, REPRESETNED BY ITS SMT.N. JAYALAKSHMI, DIRECTOR. (V/O DATED 13.12.2023 AND 14.02.2024, NOTICE OF SERVICE TO RESPONDENT IS HELD SUFFICIENT) … RESPONDENT - 2 - NC: 2024:KHC:18812 COP No. 47 of 2015 THIS COMPANY PETITION IS FILED U/S 433 AND 434 OF THE COMPANIES ACT, 1956, PRAYING TO DIRECT WINDING UP OF THE RESPONDENT COMPANY M/S. JAANSI SAMPARK CONSULTANCY PVT. LTD., AND APPOINT THE OFFICIAL LIQUIDATOR ATTACHED TO THIS HON'BLE COURT OR ANY OTHER FIT PERSON AS THE LIQUIDATOR OF THE RESPONDENT COMPANY WHO MAY BE GIVEN ALL POWERS UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 INCLUDING RECORDS OF SHARES, BOOKS OF ACCOUNTS, RECORDS, DOCUMENTS, PAPERS, BILLS ETC. OF THE COMPANY AND ETC. THIS PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER The petitioner has filed the present petition under Section 433 and 434 of the Companies Act, 1956 and has sought for winding up of the respondent - company M/s. Jaansi Sampark Consultancy Pvt. Ltd., and has sought for appointment of the official liquidator attached to this Court to act as a liquidator of the respondent - company with further direction to be passed to the liquidator to take charge of the assets and records of the company.

A notice was issued on the said petition and the respondent has put in appearance. Though sufficient opportunity has been granted as is noticed from the order sheet, statement of objections has not been filed. Further - 3 - NC: 2024:KHC:18812 COP No. 47 of 2015 the respondent's counsel has filed his memo of retirement and consequent to acceptance of his memo of retirement, the Registry was directed to show the name of the respondent in the cause list.

It is also to be noticed that subsequent to the memo of retirement being accepted, notice was issued to the respondent and in terms of the order dated

14.02.2024, reference to the postal tracking report when made would indicate that notice has been delivered to the respondent. Accordingly, this Court had ordered that notice to respondent is held sufficient as per order dated

14.02.2024. It is further noticed that this Court by order dated 07.03.2024 after hearing the petitioner has admitted the petition. Relevant extract of the order dated

07.03.2024 is as follows:

1. The petitioner claims to be a creditor of respondent-company. An amount of Rs.1,00,00,000/- having been paid by the petitioner to respondent on 10.12.2012 for the purpose of acquisition of certain lands, the - 4 - NC: 2024:KHC:18812 COP No. 47 of 2015 respondent neither identified the property nor made available the properties, as such the petitioner had issued legal notice

14.10.2014 calling upon the respondent to make payment.

2. Though notice has been served on the respondent, no reply has been received. In the meanwhile, the petitioner preferred a suit in O.S. No.10103/2015 before the XIX Addl. City Civil and Sessions Judge, Bangalore, for the said amount which has been decreed. Even after the decree, no amounts have been paid.

3. Learned counsel for the petitioner submits that the company has failed to make payment of its debt, as such it is required to be wound up.

Notice having been issued to the respondent, though initially counsel had appeared, he retired the matter subsequently and notice again having been issued to the respondent, despite service of notice, the respondent is not represented. Having gone through the papers, it is clear that debt is given to the respondent and respondent - 5 - NC: 2024:KHC:18812 COP No. 47 of 2015 has failed to make payment, as such the petition is admitted. "

4. Subsequent to the order admitting the petition, an advertisement was taken out and the petitioner by way of memo dated 02.04.2024 filed the copy advertisement calling for views of creditors contributories and other persons desiring and to make claim prior to making of the order in this petition.

It is made out from the facts that the petitioner is stated to have lent an amount of Rs.1,00,00,000/- to the respondent who had represented that it was in the business of land dealings including buying and selling of lands.

The petitioner had then requested for refund of the entire amounts as the respondent was not in a position to fulfil its representation. Subsequently, the petitioner is stated to have got issued legal notice which though served, there was no reply from the respondent. - 6 - NC: 2024:KHC:18812 COP No. 47 of 2015

It is in this context that the winding up petition has been filed on the ground of inability of the respondent to pay debt and that it was just and equitable that the respondent company be wound up.

It is an admitted position that petitioner had lent money to the respondent apparently in connection with a land procurement transaction. The payment is evidenced by bank extract at Annexure-C. The account stands in the name of the petitioner and the entry on 10.12.2012 indicates that the respondent company had received an amount of Rs.1,00,00,000/- on 10.12.2012.

Legal notice has been issued as per Annexure-D addressed to the respondent dated 14.10.2014 and the same has been posted on 18.10.2014 as evidenced by the postal receipt and the said notice has been acknowledged on 21.10.2014. The said notice is issued specifically stating that non-payment of amount claimed would result in construing that the respondent was unable to pay debt and proceedings would be initiated under Section 433 and - 7 - NC: 2024:KHC:18812 COP No. 47 of 2015 434 for winding up of the company. There has been no response to the said notice. It is clear that once ground is sought to be made out of inability to pay debt under Section 433E and procedure under Section 434 (1) (a) of issuing a legal notice has been followed after giving time for payment, which is not complied with, in terms of Section 434 it is deemed that the respondent is unable to pay its debt.

Clearly there is no contravention to such stand either by statement of objections filed or by any arguments advanced on behalf of the respondents.

It must be noticed that the subsequent event of the respondent suffering a decree in O.S.No.10103/2015 at the instance of the petitioner herein who was the plaintiff in O.S.No.10103/2015 has added strength to the case of the petitioner. The very same transaction which is detailed in the petition was also a subject matter of claim in the suit filed against the respondent-Company. There was a specific issue framed as to whether the petitioner - 8 - NC: 2024:KHC:18812 COP No. 47 of 2015 herein who was the plaintiff had proved that he has paid Rs.1,00,00,000/- to the defendant on 10.12.2012 through RTGS as advance amount to purchase a suitable property. The said question has been held in the affirmative after a detailed consideration and suit has been decreed for an amount of Rs.1,00,00,000/- with interest. Copy of the said judgment in O.S.No.10103/2015 has been filed and it is clear that the assertion regarding inability to pay by the respondent has been made out. The debt as made out stands crystalised.

Learned counsel for the petitioner has also filed a memo stating that there has been no appeal against the said judgment and decree.

Accordingly, it is clear that grounds are made out to allow the petition on the ground of respondent company being unable to pay its debt.