M/S Jagatjit Brown Forman (India) ... vs M/S Sen Law & Company
2009 Latest Caselaw 4091 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+              CA(C) NO. 18 OF 2008 IN CP NO. 439 OF 1999


                                                   Reserved on : 15.09.2009
                                          Date of Decision: October 09, 2009

In the matter of the Companies Act, 1956

And

In the matter of

M/s Jagatjit Brown Forman (India) Ltd. (In liquidation) through the
Official Liquidator
                                                     .........Applicant

                                     Through :   Ms. Purnima Sethi, Advocate
                                                 for the Official Liquidator.

                                     Versus


M/s Sen Law & Company
                                                           ..........Respondent

CORAM :

       HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.     Whether Reporters of local papers may be allowed to see the
       judgment?

2.     To be referred to the Reporter or not?

3.     Whether the judgment should be reported in the Digest?


SUDERSHAN KUMAR MISRA, J.

1. This is an application moved by the official liquidator under

Section 446 of the Companies Act, 1956 praying for recovery of an

amount of Rs. 46041.84, along with interest @ 18% per annum, from

the respondent - M/s Sen Law and Company.

2. Pursuant to a petition filed on 14th December, 1999, M/s

Jagatjit Brown Forman Pvt. Ltd. was directed to be provisionally wound

up on 19th December, 2003 and final winding up orders were passed

by this Court on 12th January, 2005. The official liquidator attached to

this Court was appointed as its liquidator.

3. The company in liquidation, i.e. M/s Jagatjit Brown Forman

Pvt. Ltd., was in the business of manufacture and sale of liquor and

alcoholic beverages and other consumer products.

4. On examination of the statement of affairs filed by the ex-

Directors under Section 454 of the Companies Act, 1956 along with a

list of debtors, the official liquidator discovered that an amount of Rs.

46041.84 is due to the company in liquidation from the respondent.

The Official Liquidator has, therefore, moved this application praying

for an order of recovery of the said amount, along with interest @

18% per annum till its realization in favour of the applicant, against

the respondent.

5. On 29th February, 2008, Mr. D.K.Pandey, Advocate,

entered appearance on behalf of the respondent, pursuant to a notice

issued by this Court on 15th January, 2008. The Official Liquidator was

directed to supply a copy of this application, along with supporting

documents, to counsel for the respondent within one week and the

respondent was given an opportunity to file a reply to the same within

three weeks thereafter and the matter was adjourned to 28th May,

2008.

6. However, on 28th May, 2008, there was no appearance on

behalf of the respondent and fresh notice of the application was

directed to be issued to the respondent, returnable on 20 th October,

2008. This order apparently came to be passed due to an oversight

and the previous order passed by this Court on 29th February, 2008

where counsel for the respondent had entered appearance went

unnoticed. Thereafter, on 28th October, 2008, a statement was made

by counsel for the applicant that, in fact, the respondent stood served

and since there was no appearance on behalf of the respondent,

adverse orders were deferred and the matter was adjourned to 5th

March, 2009 in the interests of justice.

7. On 5th March, 2009, the matter was adjourned to 20th July,

2009. On 20th July, 2009 also, there was no appearance on behalf of

the respondent and counsel for the applicant prayed for some time to

file an affidavit of service of respondent No. 2. Affidavit of service of

respondent No. 2 has since been filed and the matter was adjourned to

12th August, 2009. Since there was no appearance on behalf of the

respondent even on 12th August, 2009 also, the respondent was

directed to be proceeded ex-parte and the matter was adjourned to

15th September, 2009. On 15th September, 2009, the applicant's

evidence was completed and arguments were heard.

8. An affidavit of Mr. Sudhir Kapoor, Assistant Official

Liquidator has been filed on 27th August, 2009 by way of evidence in

support of the application, which is Ex.PW1. The applicant has proved

a copy of the statement of affairs filed by the ex-Directors, as also a

copy of the ledger account pertaining to the respondent - M/s Sen Law

and Company, which was maintained by the company in liquidation.

In that ledger, a debit balance of Rs. 46041.84 is reflected. He has

also proved a copy of the demand notice sent to the respondent on

13th September, 2009 by the Official Liquidator under Section 446 of

the Companies Act, 1956 seeking recovery of Rs. 46041.84. This

notice of demand was duly served upon the respondent. The

respondent has not bothered to respond to the notice of demand.

9. The respondent had been duly served with notice of these

proceedings and, in fact, on 29th February, 2008, counsel had also

appeared for the respondent. However, thereafter, the respondent

has chosen to remain absent and, consequently, this Court had no

option but to direct that the respondent be proceeded ex-parte.

10. There is no defence to the claim. The amount claimed

stands proved.

11. Consequently, the respondent is directed to pay an amount

of Rs. 46041.84 to the applicant, along with interest @ 6% per annum

from the date of the application till realization of the amount, along

with 2% administrative expenses which are to be recovered from the

respondent.

12. The application is disposed of.

SUDERSHAN KUMAR MISRA, J.

October 09, 2009 sl