Bombay High Court
Real Time Interactive Media Pvt. ... vs Metro Mumbai Infradeveloper Vt. ... on 12 January, 2018
Bench: K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMPANY PETITION NO.382 OF 2015
Real Time Interactive Media Pvt. Ltd. ....Petitioner
Vs.
Metro Mumbai Infradeveloper Pvt. Ltd. ....Respondent
----
Mr. Astad Randeria a/w. Ms. Anagha Mhatre i/b. Khimani and Associates
for petitioner.
None for respondent.
----
CORAM : K.R.SHRIRAM, J.
DATE : 12th JANUARY, 2018
P.C.:
1 This petition is filed for winding up of respondent company -
Metro Mumbai Infradeveloper Pvt. Ltd. on the ground that respondent is
indebted to petitioner, is unable to discharge its debts and is commercially
insolvent.
2 Petitioner is engaged in the business of publishing and
managing advertisements on BEST TV LED screens in the BEST buses
(BEST TV) running in Mumbai. Petitioner was the sole agent of BEST in
respect of airing such advertisements on BEST TV. By an Agreement dated
2nd October, 2011 entered into between petitioner and respondent
company, company engaged the services of petitioner for the purpose of
displaying advertisements on BEST TV in 1300 Non AC buses and 250 AC
buses for a period of 3 months from 7 th October, 2011 till 7th January, 2012
for a consideration of Rs.15 lakhs plus taxes. In accordance with the
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Agreement, petitioner displayed the advertisements on BEST TV and raised
three invoices in the months of November, 2011, December, 2011 and
January, 2012, each in the sum of Rs.5,16,665/-.
3 The company issued two separate cheques of Rs.5 lakhs each
dated 10th January, 2012 and 15th February, 2012 towards part payment.
Both these cheques were dishonoured on presentation. Thereafter, the
company paid a sum of Rs.2,99,000/- and further issued four post dated
cheques for a total amount of Rs.7 lakhs towards part payment of its total
outstanding liability. Thereafter, company issued further four cheques dated
22nd March, 2012, 27th March, 2012, 9th April, 2012 and 16th April, 2012 for
a total amount of Rs.2,01,000/- towards further part payment of its
outstanding liability. As some of the cheques were dishonoured, petitioner
called upon the company once again to make the payments. Respondent
company through their Advocate's letter dated 16 th April, 2012 requested
petitioner to return the post dated cheques and further assured that the
entire outstanding would be paid within three months from 16 th April,
2012.
4 There are various correspondence from the company. To cut
the matter short, the company paid in installments a total amount of
Rs.5 lakhs and as on 16th April, 2012 after adjusting this Rs.5 lakhs from
the total invoice of Rs.15,49,995/- there was a balance outstanding of
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Rs.10,49,995/-. It should be noted that the invoices raised also mentioned
that interest will be charged if not paid on or before the due date. In the
Agreement, it is mentioned that the credit period offered was 45 days from
the date of bills. As no payments came forth, petitioner caused statutory
notice dated 27th May, 2014 to be issued to respondent company. It is stated
in the petition that the company has not replied to the statutory notice
issued under the provisions of Companies Act, 1956.
5 On record there is an affidavit of one Pradeep Kargutkar
affirmed on 27th September, 2016 confirming advertising the petition in
Free Press Journal (in English) and Navshakti (in Marathi) and also in the
Maharashtra Government Gazette. There is a service report dated
31st August, 2016 filed by the Company Department stating that the notice
sent under Rule 28 of the Companies Court (Rules), 1959 has been
returned with the endorsement "left". Mr. Randeria, counsel for petitioner
states that the recent MCA website extract indicates the status of the
company as "Strike Off". At the same time, Mr. Randeria also points out
that the registered address shown in the Company Master Data is the same
address to which notice under Rule 28 has been sent and that is the same
address which reflected even in the cause title to which statutory notice
was also sent. As notice under Rule 28 has been sent to the registered
address, which appears in the Company Master Data, I am inclined to
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accept the notice under Rule 28 has been effectively served.
6 The next question to be considered is whether the company,
which is struck off the register, can be wound up. Mr. Randeria tenders
Public Notice dated 5th May, 2017, which is taken on record and marked 'X'
for identification, issued by Registrar of Companies, Mumbai, giving a list
of companies which have been struck off under Section 248 (1) of the
Companies Act, 2013. The company - Metro Mumbai Infradeveloper Pvt.
Ltd. is at serial no.36006 of the statement annexed to the said Public
Notice.
7 Section 248 (1), Section 248 (5) and Section 248 (8) and
Section 250 of the Companies Act, 2013 are relevant and the same read as
under :
248. Power of Registrar to remove name of company from
register of companies
(1) Where the Registrar has reasonable cause to believe that--
(a) a company has failed to commence its business within one year of
its incorporation;
(b) the subscribers to the memorandum have not paid the
subscription which they had undertaken to pay within a period of one
hundred and eighty days from the date of incorporation of a company
and a declaration under sub-section (1) of section 11 to this effect has
not been filed within one hundred and eighty days of its
incorporation;
or
(c) a company is not carrying on any business or operation for a
period of two immediately preceding financial years and has not
made any application within such period for obtaining the status of a
dormant company under section 455, he shall send a notice to the
company and all the directors of the company, of his intention to
remove the name of the company from the register of companies and
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requesting them to send their representations along with copies of the
relevant documents, if any, within a period of thirty days from the
date of the notice.
(2) ..............
(3) ..............
(4) ...............
(5) At the expiry of the time mentioned in the notice, the Registrar
may, unless cause to the contrary is shown by the company, strike off
its name from the register of companies, and shall publish notice
thereof in the Official Gazette, and on the publication in the Official
Gazette of this notice, the company shall stand dissolved.
(6) ...............
(7) ...............
(8) Nothing in this section shall affect the power of the Tribunal to
wind up a company the name of which has been struck off from the
register of companies.
250. Effect of company notified as dissolved
Where a company stands dissolved under section 248, it shall on and
from the date mentioned in the notice under sub-section (5) of that
section cease to operate as a company and the Certificate of
Incorporation issued to it shall be deemed to have been cancelled from
such date except for the purpose of realising the amount due to the
company and for the payment or discharge of the liabilities or
obligations of the company.
8 Though it is not clear the reason why the company's name was
struck off, Section 248 (1) empowers the Registrar to remove the name of
company from the register of Companies but before he does that he shall
send a notice to the company and all the directors of the company, of his
intention to remove the name of the company from the register of
companies and requesting them to send their representations along with
copies of the relevant documents, if any, within a period of thirty days from
the date of the notice. At the expiry of the time mentioned in the notice, the
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Registrar may, unless cause to the contrary is shown by the company, strike
off its name from the register of companies, and shall publish notice thereof
in the Official Gazette, and on the publication in the Official Gazette of this
notice, the company shall stand dissolved. At the same time, nothing in
Section 248 shall affect the power of the Court to wind up a company the
name of which has been struck off from the register of companies. The
effect of company notified as dissolved is that the company shall on and
from the date mentioned in the notice under sub-section (5) of Section 248
cease to operate as a company and the Certificate of Incorporation issued to
it shall be deemed to have been cancelled from such date except for the
purpose of realising the amount due to the company and for the payment
or discharge of the liabilities or obligations of the company. Therefore, it is
clear that just because the name of the company is struck off the register
under Section 248 of the Companies Act, 2013, that will not come in the
way of the Court to pass an order winding up of company. Similar
provisions are also available in Companies Act, 1956 being Section 560 and
Section 560 (5) which reads as under :-
560. Power of Registrar to strike defunct company off register.
(1) Where the Registrar has reasonable cause to believe that a
company is not carrying on- business or in operation, he shall send to
the company by post a letter inquiring whether the company is
carrying on business or in operation.
(2) If the Registrar does not within one month of sending the letter
receive any answer thereto, he shall, within fourteen days after the
expiry of the month, send to the company by post a registered letter
referring to the first letter, and stating that no answer thereto has
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been received and that, if an answer is not received to the second letter
within one month from the date thereof, a notice will be published in
the Official Gazette with a view to striking the name of the company
off the register.
(3) If the Registrar either receives an answer from the company to the
effect that it is not carrying on business or in operation, or does not
within one month after sending the second letter receive any answer,
he may publish in the Official Gazette, and send to the company by
registered post, a notice that, at the expiration of three months from
the date of that notice, the name of the company mentioned therein
will, unless cause is shown to the contrary, be struck off the resister
and the company will be dissolved.
(4) If, in any case where a company is being wound up, the Registrar
has reasonable cause to believe either that no liquidator is acting, or
that the affairs of the company have been completely wound up, and
any returns required to be made by the liquidator have not been made
for a period of six consecutive months, the Registrar shall publish in
the Official Gazette and send to the company or the liquidator, if any,
a like notice as is provided in subsection (3).
(5) At the expiry of the time mentioned in the notice referred to in
sub- section (3) or (4), the Registrar may, unless cause to the contrary
is previously shown by the company, strike its name off the register,
and shall publish notice thereof in the Official Gazette; and on the
publication in the Official Gazette of this notice, the company shall
stand dissolved: Provided that-
(a) the liability, if any, of every director, the managing agent,
secretaries and treasurers, manager or other officer who was
exercising any power of management, and of every member of the
company, shall continue and may be enforced as if the company had
not been dissolved; and
(b) nothing in this sub- section shall affect the power of the Court to
wind up a company the name of which has been struck off the register.
(6) ..........
(7) ..........
(8) ..........
(9) ..........
9 Therefore, even under the Companies Act, 1956, if the
Registrar of Companies was to strike off the name of the company from the
register, that would not affect the power of the Court to wind up the
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company the name of which has been struck off the register.
10 In the circumstances, there is no bar in winding up the
company. It should be noted that the company has not filed any affidavit in
reply opposing the petition. Therefore, the averments in the petition are not
controverted. Even to the statutory notice, no reply has been filed. It is
settled law that where no response to a statutory notice has been made, the
court may pass a winding up order on the basis that amount claimed has
not been denied by the company and there is a presumption of inability to
pay by the company. Where no response has been made to the statutory
notice, the respondent-company runs a risk of winding up petition being
allowed. By virtue of Section 434 of the Companies Act 1956 a
presumption of the indebtedness can be legitimately drawn by the court
where no reply to the statutory notice is forthcoming.
11 In the circumstances, having heard Mr. Randeria, counsel for
petitioner and having considered the petition alongwith the documents
annexed to the petition, I am satisfied that the company is indebted to
petitioner, is unable to discharge its debts, is commercially insolvent and
requires to be wound up.
12 Company petition is, therefore, allowed in terms of prayer
clauses - (a) and (b) which read as under :
(a) that the Respondent Company, viz., Metro Mumbai
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Infradeveloper Pvt. Ltd. having its registered office at
635, 6th Floor, Laxmi Plaza, Laxmi Industrial Estate,
Mumbai - 400 053, be wound up by and under the
directions of this Hon'ble Court under the provisions of
the Companies Act, 1956;
(b) that the Official Liquidator be appointed as
Liquidator of Respondent Company to take charge of the
assets, books of accounts and properties of Respondent
Company with all powers under the provisions of the
Companies Act, 1956.
13 Official Liquidator to take steps immediately without waiting
for notification.
14 Company petition accordingly stands disposed.
(K.R. SHRIRAM, J.)
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