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Girnar vs Choice

High Court Of Gujarat|29 June, 2012
1. Mr.
S.S. Trivedi, learned advocate for the the respondent has tendered a copy of the Undertaking filed by the respondent, as per the order dated 18th June, 2012, of this Court. It is submitted by Mr. S.S. Trivedi that the Court had directed that the Undertaking be filed in respect of five cheques as mentioned in the order. However, the first cheque mentioned at serial no.1 has already been honoured, therefore, this undertaking is filed for the remaining four cheques. Mr.B.R. Gupta, learned advocate for the petitioner has also confirmed that the first cheque bearing no.281732 dated 12th May, 2012, for an amount of Rs.2 Lacs, has been honoured.
2. The Undertaking filed by the respondent in respect of the remaining four cheques is taken on the record of the case.
3. This petition has been preferred by Girnar Extrusions Private Limited, under Section-433 and 434 of the Companies Act, 1956, with a prayer for winding up of the respondent company. It is the case of the petitioner that it manufactures aluminum collapsible plain, printed tubes and rigid containers. The respondent company manufactures toothpaste, shaving cream, talcs, petroleum jelly, soap, baby oil, detergent powder, air freshener gel, etc. The respondent had placed orders with the petitioner from time to time, and pursuant thereto, the petitioner had sold and delivered its goods consisting of aluminum collapsible plain and printed tubes to the respondent. According to the petitioner, as on 1st April, 2009, the respondent was indebted to the petitioner in the balance principal sum of Rs.8,13,668/-(Rupees Eight Lakhs Thirteen Thousand Six Hundred and Sixty Eight) being the unpaid value of the goods sold and delivered to the respondent. The respondent failed to make the payment of the amount of the bills on due dates. It is further the case of the petitioner that, on such default, the petitioner is entitled to charge interest at the rate of 24% per annum after the due date till realization. According to the petitioner, a total sum of Rs.15,96,204/-(Rupees Fifteen Lakhs Ninety Six Thousand Two Hundred and Four) is due and payable by the respondent as per the books of accounts of the petitioner, as on date. Copies of the statements of account for Accounting Years 2009-2010, 2010-2011 and 2011-2012 upto 15th February, 2012 i.e. at the time of filing this petition, are placed on record.
4. The case of the petitioner is also that the respondent issued ten cheques, as mentioned in Paragraph-8 of the petition, to the petitioner, with an assurance that the said cheques would be duly realized on their due dates. However, before the due date of each of the cheques, the respondent requested the petitioner not to deposit them for realization, as it was unable to arrange for necessary funds for the clearance of the said cheques; therefore, the petitioner did not deposit the said cheques. Thereafter, the said ten cheques were deposited by the petitioner, with prior intimation to the respondent, and were dishonored due to insufficient funds in the bank account of the respondent. It is the say of the petitioner that the respondent company has failed and neglected to pay its debts and is, in fact, unable to pay its debts and discharge its liabilities, therefore, it may be wound up.
5. Notice was issued in the petition and the respondent company was granted several chances to appear and settle the matter with the petitioner company. Ultimately, the Managing Director of the respondent company, Shri Ashwinbhai Patel, remained present before this Court on 18th June, 2012. He submitted five post dated cheques as mentioned in the order dated 18th June, 2012, that have been handed over by the respondent company to the learned advocate for the petitioner company. This Court directed the respondent company to file an Undertaking to the effect that all the cheques mentioned in the order dated 18th June, 2012, shall be duly honoured.
6. When the matter is taken up for hearing, Mr. S.S. Trivedi, learned advocate for the respondent company has tendered an Undertaking filed by Shri Ashwinbhai Patel, Managing Director of the respondent company. This Undertaking is in respect of four post-dated cheques in favour of the petitioner. It is confirmed by Mr. B.R. Gupta, learned advocate for the petitioner that the first cheque bearing no.281732 dated 12th May, 2012, for an amount of Rs.2 Lacs has already been honoured, therefore, the undertaking is only with respect to the four remained cheques. Mr. B.R. Gupta, learned advocate for the petitioner has submitted that a settlement has been arrived at between the parties, and the amount reflected in all the five cheques may be considered to be the full and final payment by the respondent company towards the dues of the petitioner and the petition may be disposed of, accordingly.
7. In view of the Undertaking given by the respondent company that the remaining four cheques shall be duly honoured, and the understanding between the petitioner company and the respondent company that the amount of five cheques as mentioned in the order dated 18th June, 2012 shall be considered as full and final payment by the respondent company to the petitioner company, no further order is required to be made, except that the petition is disposed of, in view of the Undertaking given by the Managing Director of the respondent company.
8. It is so ordered.
(SMT. ABHILASHA KUMARI, J) chandrashekhar* Top
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