Dotcad Private Limited vs Advantage Global BPO Private Limited

M.R. Shah, J.—As both these petitions are filed for an appropriate order of winding up of one common respondent Company - Advantage Global BPO Private Limited, both these petitions are disposed of by this common Judgment and order. Company Petition No. 170 of 2009 is filed by the petitioner - Dotcad Private Limited - u/s 433 read with Section 434 of the Companies Act, 1956 for an appropriate order of winding up of the respondent Company - Advantage Global BPO Private Limited. Similarly, Company Petition No. 255 of 2009 is filed by the petitioner Vishwa Office System, a proprietorship concern u/s 433 read with Section 434 of the Companies Act, 1956 for an appropriate order of winding up of the respondent Company - Advantage Global BPO Pvt. Ltd.

It is the case on behalf of the petitioner of Company Petition No. 170 of 2009 namely Dotcad Private Limited that the said petitioner provided Desktop Computers and Servers/Peripherals to the respondent Company for a total amount of Rs. 53,65,621=00 and the respondent Company paid part payment of Rs. 28,65,620=00 and the balance amount of Rs. 25,00,001=00 still remained due and payable at the end of the respondent Company. It is the further the case on behalf of the said petitioner that towards the aforesaid dues of Rs. 25,00,001=00, the respondent Company issued four cheques amounting to Rs. 24,21,871=00, however when the said four cheques were deposited in the Bank, all the four cheques had dishonoured and thereafter again fresh cheques were issued which were again deposited, however, the same were again dishonoured and returned by the bank with endorsement of "fund insufficient". It is further the case of the said petitioner that thereafter the said petitioner again issued statutory notice, however, the respondent Company has not paid the amount of Rs. 25,00,001=00 to the said petitioner and therefore, the said petitioner has preferred Company Petition No. 170 of 2009.

It is the case on behalf of the petitioner of Company Petition No. 255 of 2009 namely Vishwa Office System, that an amount of Rs. 24,84,943=00 is due and payable by the respondent Company to the said petitioner and despite several reminders and even after service of statutory notice, the said amount has not been paid and the cheques which were issued, have been dishonoured.

It is submitted by the learned advocate appearing on behalf of the respective petitioners that the respondent Company has failed to make the payment of the amount due and payable to the respective petitioners and as such the respondent Company is not in a position to pay the amount due and payable by the respondent Company to the respective petitioners, looking to its financial condition. It is submitted that the respondent Company is not a running Company and is not viable and has lost its substratum. It is submitted that there are other various creditors also. Therefore, it is requested to pass appropriate order of winding up the respondent Company and appoint the Official Liquidator.

Admission of the respective petitions have been advertised in local news paper as per the orders passed by this Court. There is no reply filed by the respondent Company to the present petitions. The liability to pay the amount due and payable to the petitioners has not been denied and/or disputed. The allegations that the respondent Company is not in a position to pay the debt to the petitioner as well as other creditors is not disputed by the respondent Company. Nothing has been pointed out to show that the respondent Company is viable running Company and/or its financial position is such that it can pay its debts.

In view of the above, it appears that the respondent Company has lost its substratum and is not in a position to pay its debt to its creditor and therefore, the respondent Company is required to be ordered to be wound up.

In view of the above, both the petitions succeed and the respondent Company - Advantage Global BPO Private Limited is hereby directed and ordered to be wound up. The Official Liquidator attached with this Court is hereby appointed as Official Liquidator for the respondent Company. The Official Liquidator is hereby directed to take possession of the properties (movable and immovable) of the respondent Company along with its Bank Accounts, cash, Account Books etc. forthwith. The Official Liquidator shall submit its report within a period of three months. If required, he can take service of the official valuer for the purpose of preparation of the possession note etc. In the facts and circumstances of the case, there shall be no order as to costs.