M/S. Grandeur Collection vs Shahi Fashions Pvt. Ltd.
2013 Latest Caselaw 3901 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Reserved on: 30th August, 2013
%                                   Date of Decision:3rd September, 2013

+      CO.PET. 475/2011

       M/S. GRANDEUR COLLECTION                            ..... Petitioner
                             Through:   Mr. Dhruv Wahi with Mr. Ashish
                                        Sindhu, Advocates.
                    versus


       SHAHI FASHIONS PVT. LTD.                          ..... Respondent

Through: Mr. C. Mukund with Mr. Ashok Jain, Mr. Pankaj Jain, Ms. Ekta Bhasin, Mr. Amit Kesaria and Ms. Firdouse Qutbwani, Advocates.

CORAM:

MR. JUSTICE R.V. EASWAR

R.V. EASWAR, J.:

This is a petition filed under section 433(e), 434 and 439 of the

Companies Act by M/s Grandeur Collection seeking winding up of M/s

Shahi Fashions Pvt. Ltd. in the following circumstances.

2. The petitioner is a sole proprietorship concern engaged in the

business of manufacture and sale of readymade garments. It entered

into an arrangement with the respondent company under which it

regularly supplied garments on outright sale basis and it was agreed that

the respondent company would make payments to the petitioner against

the invoices raised. In the course of the business transactions between

the petitioner and the respondent, the petitioner raised various invoices

upon the respondent company. In response to the e-mails sent by the

petitioner, the respondent submitted a statement of account for the

period from 1.4.2009 to 31.3.2010 showing an outstanding amount of

`23,60,758/- due to the petitioner. It would appear that certain claims

were raised by the respondent company against the petitioner by way of

debit notes. Eventually, the petitioner, found that the amount due by the

respondent company was not `23,60,758/- but `22,71,418/-. In the e-

mail dated 27.8.2010, the respondent company admitted the liability to

pay the aforesaid amount to the petitioner on account of the transactions

between them. The amount was however not paid.

3. On 24.9.2011 the advocate of the petitioner issued a notice for

winding up under section 433(e) read with section 434 of the Companies

Act to the respondent company. The aforesaid statutory notice was sent

to the registered office of the respondent company at G-44, Industrial

Area, Lawrence Road, New Delhi-110035. The alternate notice was

addressed to A.K.-66-67, Shalimar Bagh, Delhi-110052. Notice was

also sent by e-mail to the respondent company at the latter‟s e-mail ID

which was „[email protected]‟. Whereas the notice sent to the

registered office was returned unserved with the postal remark „left‟,

there was no reply to the notice sent through e-mail. It is in the

aforesaid circumstances that the present petition was filed in this Court.

4. The defence taken by the respondent company is that the

garments supplied by the petitioner were not of the desired quality but

were of inferior quality about which complaints had been lodged many

times but to no effect. It is further submitted that the respondent did not

receive any notice sent by the petitioner.

5. I am unable to accept the defence raised by the respondent

company. As regards the non-service of the statutory notice, according

to the judgment of the learned single judge of this Court (Dr.

Mukundakam Sharma, J) in Hotline Teletubes & Components Ltd. Vs.

A.S. Impex Ltd. 105 (2003) DLT 762, there is no requirement that the

statutory notice envisaged by section 434(1)(a) of the Act should be

served on the respondent company; it was only necessary to send the

notices to the registered office of the respondent. In the light of this

judgment, the submission of the respondent company that it did not

receive any notice at its registered office is of no consequence. The

respondent did not dispute that its registered office was at G-44,

Industrial Area, Lawrence Road, New Delhi-110035.

6. The other argument of the respondent company was that the

petitioner was earlier communicating with the respondent company in

another e-mail ID and only for the purpose of sending statutory notice,

the e-mail ID namely "[email protected]" was used which was

strange and unusual. I do not see the relevance of this argument or how

it would advance the case of the respondent company. According to the

Form-32 submitted by the respondent-company to the ROC, the e-mail

ID of the company was intimated as „[email protected]‟ and it

was to this e-mail ID that the statutory notice was sent by way of

attachment. The receipt thereof is not denied. So long as the statutory

notice was sent to the e-mail ID of the company as intimated to the

ROC, nothing is to be gained by contending that all earlier

communications between the petitioner and the respondent company

were made through a different e-mail ID.

7. It is further noted that initially the respondent company

acknowledged a debt of `22,60,758/- in favour of the petitioner and this

is also supported by a statement for the period 1.4.2009 to 31.3.2010

sent by the respondent itself. However, after adjusting the amount of

debit notes issued by the respondent company, the petitioner brought

down the outstanding balance to `22,71,418/-. Responding to this

communication from the petitioner, the respondent company sent an e-

mail on 27.8.2010 to the petitioner acknowledging the balance of

`22,71,418/- and sent an updated acknowledgment through e-mail to the

petitioner.

8. It is not in dispute that no reply was sent to the statutory notice

sent through e-mail to the respondent company. In para 19 of the

petition there is a specific averment that the respondent company is

unable to make the payment and is commercially insolvent. The

defences taken by the respondent company are without any substance

and appear to be mere moonshine. In these circumstances, I am

satisfied that the respondent company is unable to pay its debts to the

petitioner and therefore should be wound up. I accordingly, admit the

winding up petition.

9. The OL attached to this Court is appointed as the Provisional

Liquidator („PL‟) of the Respondent. The OL is directed to take over all

the assets, books of accounts and records of the Respondent forthwith.

The OL shall also prepare a complete inventory of all the assets of the

Respondent before sealing the premises in which they are kept. He may

also seek the assistance of a valuer to value the assets. He is permitted to

take the assistance of the local police authorities, if required.

10. The Directors of the Respondent are directed to strictly comply

with the requirements of Section 454 of the Companies Act, 1956 and

Rule 130 of the Rules and furnish to the OL a statement of affairs in the

prescribed form verified by an affidavit within a period of 21 days from

today. They will also file affidavits in this Court, with advance copies to

the OL, within four weeks setting out the details of all the assets, both

movable and immovable, of the Respondent company and enclose

therewith the balance sheets, profit and loss accounts and copies of the

statements of all the bank accounts for the last three years. A report be

filed by the OL before the next date of hearing.

11. A copy of this order shall be sent to the official liquidator within

three days.

List for further proceedings on 20th November, 2013.

(R.V. EASWAR) JUDGE SEPTEMBER 03, 2013 vld