Dharmesh Sharma DECISION
Dharmesh Sharma, J.
CO.PET. 320/2008
1. The instant Company Petition has been instituted under Sections 433(e), 434 and 439 of the Companies Act, 1956 seeking winding up of the respondent company-M/s. Indus Polyfilms Specialists Pvt. Ltd., and is predicated on the non-payment of outstanding dues amounting to Rs. 31,78,615/-along with interest @ 18% per annum.
2. Briefly stated, the petitioner company is engaged in the business of manufacturing, marketing and sale of certain polyester products such as yarns, films and other allied products. It is stated on behalf of the petitioner company that the respondent company placed certain orders for the supply of the above-mentioned polyester goods. Further, it was agreed upon between the parties that the petitioner company was to supply the goods to an associate company of the respondent, namely M/s. SJS Packaging Inc. situated in Chicago, USA, and that the payment for such supplies would be made by the respondent company and its associate company-SJS Packaging Inc.
3. It appears that the respondent company issued the following cheques to partly discharge its liabilities towards the invoices raised by the petitioner company:
(i) Cheque No. 020473, dated 15.02.2008-for an amount of Rs. 9,80,000/-;
(ii) Cheque No. 205906, dated 25.07.2008-for an amount of Rs. 5,00,000/-; and
(iii) Cheque No. 205907, dated 25.07.2008-for an amount of Rs. 5,00,000/-
4. In this regard, it is stated on behalf of the petitioner company that said cheques were drawn on Centurion Bank of Punjab, Green Park Extension, New Delhi; and on presentation of the cheques for encashment, all three of the above-noted cheques stood dishonored with the remarks "Funds Insufficient", vide the Cheque Return Memo dated 31.07.2008.
5. It is the case of the petitioner company that the respondent company failed to discharge its liability despite a notice dated 11.08.2008 having been issued under Section 138 of the Negotiable Instruments Act of 1881. Thereafter, in view of the fact that the respondent company failed/neglected to discharge its liability, the petitioner company was constrained to serve a legal demand notice dated 15.09.2008 upon the respondent company under Section 434 of the Companies Act, 1956 calling upon them to repay the outstanding amount of Rs. 31,78,615/-along with interest @ 18% per annum. However, despite issuance and service of the legal notice dated 15.09.2008, the respondent company failed to repay the outstanding amount, and hence, the present petition was instituted.
6. It is borne out from the record that a Provisional Liquidator was appointed to the respondent company vide order dated 17.03.2010. However, subsequently, an application being CO.APPL. No. 621/2010 was moved seeking recall of the order dated 17.03.2010 and said application was allowed vide order dated 18.10.2010 and the order dated 17.03.2010, appointing a Provisional Liquidator, was thereby recalled. Thereafter, vide order dated 17.01.2012, the CO.APPL. bearing No. 1162/2008, seeking appointed of a Provisional Liquidator was revived, which has since been pending.
7. Evidently, the respondent company has failed to pay its debt in the normal and ordinary course of its business, hence, the present petition has been filed. However, on a perusal of the record, it is borne out that this winding up petition has been a complete non-starter, and as of yet, no substantial orders have been passed in furtherance of the liquidation of the respo........