Winding Up Company Petition High Court

COMPANY PETITION NO. ________ OF 2014

IN THE HIGH COURT AT CALCUTTA

ORIGINAL JURISDICTION

IN THE MATTER OF:-

The Companies Act, 1956

A N D

IN THE MATTER OF:-

Sections 433, 434 and 439 of the said Act

A N D

IN THE MATTER OF:-

M/s ______________, a Company incorporated under the Companies Act, 1956 having their registered office at __________________________.

…Respondent-Company

A N D

IN THE MATTER OF:-

­­­­­M/s _______________, having their registered office at _______________.

…Petitioner Company

To,

The Hon’ble ____________, Chief Justice, And His Companion Justices of the said Hon’ble Court

The humble petition of the petitioner company abovenamed most respectfully

S H E W E T H:

1. The address of the Petitioner Company for services of all notices, processes, etc. is that of its Advocate, ______________________________.
2. The respondent company abovenamed, namely _____________ (hereinafter referred to as ‘the said Company’) was incorporated in terms of the provisions of the Companies Act, 1956. The registered office of the company is situated at _____________________, within the jurisdiction of this Hon’ble Court.
3. The authorized share capital of the said Company (as per the inspection of the file of the said Company at Registrar of Companies, West Bengal, Kolkata on ___________) is Rs. _________________/-, divided into _____/- equity shares of Rs. ____ each.
4. The main objects for which the said Company was incorporated are, inter alia, as follows:
5. To carry on the business of ____________
6. (b)      .
7. There are other objects more particularly stated in the Memorandum & Articles of Association of the Respondent-Company. The Petitioners crave leave to refer to and rely upon the Memorandum & Articles of Association of the Respondent-Company at the time of hearing, if necessary.
8.  

   The main objects for which the Petitioner Company was incorporated are, inter alia, as follows:

To carry on the business of ______________ and for that purpose to purchase and sell ________________________ of all kinds and description including any _______________ in India or abroad or any type like ________________ to promote the sale or any other interest of its clients.

In this connection a copy of the Memorandum of Association of _____________ is annexed hereto and marked with letter ____ (Page – ­­­_____).

8. The Petitioner Company states that the said Company is indebted to the Petitioner Company for a sum of Rs. _________/-(Rupees __________________ only) being the principal amount in view of the facts more fully stated herein below.

9. At all material times and even now the Petitioner Company herein is engaged in the business of _____________. The petitioner company is equipped with ultra modern equipments and has got specialized knowledge and techniques to maintain the high standards, holds remarkable goodwill in the trade and has been enjoying an impeccable reputation in the market.

10. That before the ________ in the year ____, the said Company approached the petitioner company and sought for the business offers of the Petitioner Company with regard to __________ in Kolkata. Accordingly the said Company accepted the offers of the Petitioner Company and placed certain orders of ____________ in Kolkata. The petitioner company placed its bills upon the said Company against the said orders and the said Company paid the same. The said conduct of the said Company impressed the petitioner company and the petitioner company, with reasonable belief, relied upon the said Company. Thereafter in the month of ____________, the said Company again placed certain similar orders to the petitioner company _____________in Kolkata for the period ________ to ________________.

11. On the basis of such orders of the said company, the petitioner company _________________ for the period from ^{__________________} and accordingly raised bill being no. ___________ dated ____________ for a sum of Rs. ______________/- upon the said Company. The said Company duly received the said bill dated __________________. The petitioner company was in an impression that the said Company will definitely make payment of the said bill.

12. The said bills raised by the petitioner company, covering the entire order placed by the said Company in _______, amounted to a sum of Rs. ______________/-.

13. That the petitioner company through its Advocate sent a legal notice dated ________ under speed post with acknowledgement due under section 434(a) of the Companies Act, 1956 at the registered office of the said Company. The said notice, inter-alia, stated brief facts and called upon the said Company to make the payment of the outstanding amount Rs. ________/- towards the principal amount along with the interest dues and statutory liability within a period of  21 days from the receipt of the said notice by the said Company. A copy of the legal notice dated __________ is annexed hereto and marked with the letter __ (Page – ­­­_____).

14. That the said Company duly received the said legal demand notice dated __________ of the Petitioner Company on ___________ but till date failed and/or neglected and/or refused to reply the same.

15. That the said Company, through its Advocate by a letter dated _______________, replied to the said Petitioner Company’s legal notice dated ______________ whereof the Petitioner Company’s demand had been refused. The Petitioner Company reserves its right to make appropriate submissions regarding the contents of the said letter dated _____________ before this Hon’ble Court at the time of hearing of this application, if necessary. In this connection, a copy of the said letter dated _________ is annexed hereto and marked with letter __ (Page – ­­­_____).

16. That the said outstanding amount of Rs. ____________/- is a liability on the part of the said Company and an interest @ 18% on the said outstanding also stands against the said Company. The Petitioner company states that it is a matter of regret that despite various requests the said Company had failed to discharge its liability. Under such circumstances it is obvious that the said Company is unable to pay the debt/outstanding. Needless to mention that no dispute whatsoever was raised by the said Company with regard to the entitlement of the Petitioner Company to get the said outstanding.

17. That even though the said Company has not been able to pay the admitted dues to the petitioner company, the said Company for the sole purpose of avoiding and thwarting the present winding –up proceedings is now trying to give the color of bonafide disputes to the said fictitious, concocted and frivolous disputes as referred in preceding paragraph.

18. That a period of well more than 21 days have elapsed from the date of service of the statutory notice upon the said Company and the said Company has failed and neglected to pay the amount claimed therein. In these circumstances, there is a statutory presumption that the said Company is unable to pay its debts and is therefore consequently liable to be wound up.

19. In the aforesaid facts and circumstances, a sum of Rs. _________/- along with an interest @ 18% thereof remains due thereon.

20. The Petitioner Company most humbly states that it has now come to learn that the said Company has become commercially insolvent and is unable to pay its dues. It has also come to the knowledge of the petitioner that the liabilities of the said Company far exceed its assets and the said Company is in involved circumstances as there are a large number of creditors.

21. The Petitioner Company has further come to learn that the commercial substratum of the said Company has been lost and that the said Company is unable to pay its creditors. The Petitioner Company states that the existence of the said Company is a threat to the commercial world.

22. The Petitioner Company apprehends that the said Company will dispose of its assets with a view to defeat the claims of its creditors including the Petitioner. The Petitioner Company, therefore, submits that it is just, necessary, in the interest of justice and convenient that pending the hearing and final disposal of the petition, the Official Liquidator or some other fit and proper person to be appointed as the Provisional Liquidator of the said Company with all powers under the Companies Act, 1956. The Petitioner Company submit that if the aforesaid reliefs are not granted grave and irreparable loss and injury will be caused to the Petitioners and the other creditors of the said Company whereas, if the same are granted, no prejudice will be caused to the said Company. The balance of convenience is in favour of the Petitioner.

23. That the registered office of the said Company is situated at Kolkata. This Hon’ble Court, therefore, has jurisdiction to receive, try and dispose of this Petition.

24. In view of the aforesaid facts and circumstances and as the said Company is unable to pay its debts, it is just, fair and equitable that the said Company should be wound up in accordance with the provisions of the Companies Act, 1956.

25. Until and unless orders are passed as prayed for herein, the Petitioner Company will suffer irreparable loss, prejudice and injury.

26. This application is bona fide and for the ends of justice.

The Petitioner Company, therefore, most humbly prays Your Lordships for the following orders:

a)      That the said Company viz.___________ be wound-up by and under the orders and directions of this Hon’ble Court under the provisions of the Companies Act, 1956.

b)     That the Official Liquidator attached to this Hon’ble Court or some other fit and proper person to be appointed as Liquidator of the said Company to take charge of the business affairs and the assets of the said Company with all the necessary powers under the Companies Act, 1956.

c)      That pending the hearing and final disposal of this petition, the Official Liquidator attached to this Hon’ble Court or some other fit and proper person to be appointed as Provisional Liquidator of the said Company to take charge immediately of the business affairs and assets of the said Company with all powers under the Companies Act, 1956.

d)       Costs of and incidental to this application be paid by the Official Liquidator to the Petitioner Company at the first instance out of the sale proceeds of the assets and properties of the said Company;

e)        For such further and other reliefs as in the nature and circumstances of this case this Hon’ble Court may deem fit and proper.

And your petitioner as in duty bound shall ever pray.

PETITIONER COMPANY’S

ADVOCATE.