IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 12 TH DAY OF DECEMBER 2014 BETWEEN: BEFORE THE HON'BLE MR. JUSTICE B.MANOHAR Company Application No.682/2012 in Company Petition No.43/2008 1. M/s.M.S.Marketing Enterprises Pvt. Ltd., A Company incorporated under the Companies Act, 1956, No.1, Ground Floor, NBS Towers, No.7, Mandi Veerappa Lane, SJP Road Cross, Bangalore.. Applicant (M/s.Kamath and Kamath, Advocates) AND: 1. M/s.Havells India Ltd., A Company incorporated under the Companies Act, 1956 having its registered office at No.1/7, Ram Kishore Road, Civil Lines, Delhi 110 054, Being the successor in interest to the Company Crabtree India Ltd., Represented by its Vice President and Authorised Signatory
2 Mr.Pramod Mishra, S/o.Sri.M.N.Mishra. 2. The Official Liquidator, High Court of Karnataka, Corporate Bhavan, No.26-27, 12 th Floor, Raheja Towers, M.G.Road, Bangalore 560 001. Respondents (By Sri.G.L.Viswanath, Advocate for Petitioning Creditor, K.S.Mahadevan and V.Jayaram, Advs. for O L) This application is filed under Rules 6 and 9 of the Companies (Court) Rules, 1959 praying that for the reasons stated therein this Hon ble Court may be pleased to recall the order of winding up of the applicant Company dated 16-12-2011 and permit the applicant to contest the petition on merits. This Application coming on for Orders this day, the court made the following: O R D E R This application has been filed under Rules 6 and 9 of the Companies (Court) Rules, 1959 praying to recall the winding up order dated 16-12-2011 and to permit the applicant to contest the matter on merits.
3 2. The respondent in this company application had filed a petition under Section 433(e) and (f) r/w Section 434 of the Companies Act, 1956 for winding up of the applicantcompany. Notice issued to the applicant-company by this Court returned unserved. In view of that, a paper publication was taken out by the respondent. On the basis of the paper publication, the service of notice on the applicant was held sufficient in the said company petition. Though the name of the applicant was notified in the paper publication, the applicant had not entered appearance. The company petition was heard and winding up order was passed on 16-12-2011 in the absence of the applicant. On coming to know about the order of winding up through the Bank, the applicant filed this application contending that registered office of the applicant-company was shifted from No.2, I Floor, Mandi Veerappa Lane, SJP Road Cross, Bangalore to No.28, 9 th Cross, Upkar Tower, R.V. Road, Jayanagar, Bangalore w.e.f. 26-03-2008. Shifting of the
4 registered office of the applicant was also made known to the Registrar of Companies by filing Form No.18 dated 26-03-2008 and a Board resolution was also passed in this regard. All these documents were made available to the Registrar of Companies. Long after shifting of the office, the respondent herein filed winding up petition showing the old address of the applicant-company. Hence, notice has not been served on the applicant-company with regard to winding up of the Company. Even in the paper publication, old address has been mentioned, hence the applicant was not aware of the paper publication. 3. In the application the applicant has contended that they are not due any money to the respondent-company. The applicant has specifically intimated the respondent that unsold stock was lying with the applicant though the respondent promised to take back the same, they have not taken it. Suppressing the correct facts, the respondent
5 filed winding up petition, and got the exparte winding up order. It was specifically contended that in the applicantcompany more than 67 employees are working and the company has availed a loan of Rs.16.00 crores from the Canara Bank for its business and repaying the dues promptly. The applicant-company is paying income tax regularly. Even if this court holds that the applicant is due any money, it is in a position to repay the said amount. Except the respondent, there are no other creditors. Hence, sought for recalling the winding up order dated 16-12-2011 passed by this Court in Company Petition No.43/2008. 4. The contesting respondent has filed objections to the application and contended that the applicant-company is intentionally avoiding service of notice. In view of that, a paper publication was taken out and the applicant is served through paper publication. Hence it is not open to the applicant to contend that they are not served with
6 notice. As on the date of filing of the company petition, the applicant is due more than Rs.32,64,113/-. Hence, there is no bonafide in the application filed by the applicant and sought for dismissal of the same. 5. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the affidavit filed by the parties. 6. From the documents produced by the parties, it is clear that the registered office of the applicant-company was shifted to the new premises on 26-03-2008. Shifting of the office and also the website of the applicant was made known to the Registrar of Companies. Despite the same, the winding petition has been filed showing the old address. The records produced by the applicant clearly disclose that 67 employees are working with them and the company is financially viable. Hence it is just and necessary to given one more opportunity to the applicant
7 and the winding up order dated 16-12-2011 requires to be recalled. The applicant has made out sufficient ground to recall the said order. Accordingly, I pass the following: ORDER C.A.No.682/2012 is allowed. The order dated 16-12-2011 passed in Co.P.No.43/2008 is recalled and the company petition is restored to its original file. Sd/- JUDGE mpk/-