Dinesh Solanki v. Lushgreen Health Care Pvt. Ltd. Cin No. U85110mh2007ptc176081
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.242 OF 2015 Dinesh Solanki ....Petitioner Vs.
Lushgreen Health Care Pvt. Ltd.
....Respondent ---- Mr. P. Ranjan i/b. M/s. Halai and Co. for petitioner. None for respondent.
---- CORAM : K.R.SHRIRAM, J.
DATE : 14th DECEMBER, 2017 P.C.:
When the petition was taken up for admission on 7th July, 2016 the following order came to be passed :
This Company Petition has been filed seeking to wind up the Respondent Company-Lushgreen Health Care Pvt Ltd on the ground that it is unable to pay its debts. It is the case of the Petitioner that the Respondent Company is indebted to the Petitioner in the sum of Rs.3,49,548.22/- which is inclusive of interest @18 % p.a.
2. The brief facts of the case are that the Respondent who is in the business of providing health care to patients, had hired the Petitioner as a Consulting Cardiologist for a monthly renumeration of Rs. 35,000/-. The letter of appointment dated 1st December, 2012 is at Exhibit "C" to the Petition. The said letter of appointment is duly signed by Aditi Jalan, a Director of the Respondent Company.
3. It is the case of the Petitioner that the renumeration from the months of November 2013 to May 2014 have not been paid. In fact, the Respondent, by its letter dated 3rd May, 2014 (Exhibit-D to the Petition) intimated to the Petitioner the amount of TDS cut for the Assessment Year 2014-2015. The learned counsel appearing on behalf of the Petitioner submitted that despite cutting the TDS for the months of November 2013 to May 2014, the payment (after deduction of TDS) was never made to the Petitioner. It is in these circumstances that the Petitioner served a statutory notice dated 29th September, 2014 on the Respondent Company calling upon it to pay the outstanding dues of the Petitioner, failing which winding up proceedings would be initiated. Though the statutory notice was served on the registered office of the Respondent Company, the same was returned with the remark " unclaimed". However, the same was duly received by both the Directors to whom it was also addressed. Thereafter, the Respondent Company through its advocates letter dated 22nd October, 2014 replied to the
2/4 statutory notice and sought to refute the contentions raised by the Petitioner. In a nutshell, it was the case of the Respondent that the Petitioner was not employed with the Respondent Company. It is in these circumstances that the present Petition has been filed. After the Petition was accepted, the same was sought to be served by hand delivery, when the Petitioners were informed that the company is shifted from the said address. The affidavit of service dated 6th April, 2015 to that effect has been filed in this Court.
4. The learned counsel for the Petitioner stated that even today in the records of the ROC, the registered office of the Respondent Company is the same as the address on which the Statutory Notice was sought to be served. This being the factual position, in view of a decision of this Court in the case of Deepak Maschineries Pvt Ltd v/s Ispat Industries Ltd1 (S. J. Vazifdar,J.), I am of the view that service of the Statutory Notice issued under Section 434 of the Companies Act, 1956 is complete and good service.
5. As far as service of the Company Petition is concerned,I am satisfied that the same is good service in view of the fact that 1 2005 (2) Bom. C. R. 94.the registered address of the Respondent Company even till today continues to be the same address on which the Company Petition was sought to be served. This proposition has been clearly laid down by this Court in Company Petition No.270 of 2014 decided on 9th July, 2014 (M/s. Euroame Garuda Resorts (India) Pvt Ltd v/s Endeavour Media Management Pvt Ltd). Therefore, as far as the service of the Company Petition is concerned, I am satisfied that the same is duly served.
6. As far as merits of the matter are concerned, the learned counsel appearing on behalf of the Petitioner pointed out that in fact the Respondent Company has admitted its liability to the tune of Rs.2,28,194/- being the principal amount claimed in the present Petition as reflected in a communication addressed by the Respondent Company to the Petitioner showing the outstanding payments for the year 20132014 after deduction of TDS. This clearly indicates that at least to the amount of Rs.2,28,194/- the dues of the Petitioner are admitted. In addition to this admitted amount, the Petitioner has also made a claim in the sum of Rs. 79,778/- being an amount deducted by the Respondent Company on account of TDS which has not been deposited by the Respondent with the Income Tax Authorities.
7. Considering all these facts, I find that the claim of the Petitioner is really undisputed. In these circumstances, the following order is passed:- Respondent has not entered appearance at all. There is an affidavit of one Dinesh Solanki affirmed on 30th August, 2016 confirming publication in Free Press Journal (in English) and Navshakti (in Marathi)
3/4 and also in Maharashtra Government Gazette. There is also a service report filed by the Company Department of this Court in which it is stated that the packet sent under Rule 28 of the Companies (Court) Rules, 1959 has been returned undelivered with the endorsement "Left. Mr. Ranjan, counsel for petitioner tenders Company Master Data extract from the MCA portal, which is taken on record and marked 'X' for identification, in which the registered address of the company is the same on which the notice under Rule 28 of the Companies (Court) Rules, 1959 was issued. Therefore, I am accepting that the notice under Rule 28 has been served.
Respondent not having filed any affidavit in reply, the averments in the petition are uncontroverted. Moreover in the order dated 7th July, 2016 it is also noted that respondent has admitted its liability to the tune of Rs.2,28,194/-. I have also considered the pleadings and the documents annexed to the petition. I am also satisfied that the company is unable to pay its debts, is commercially insolvent and requires to be wound up.
Company petition is, therefore, allowed and the following order is passed :
(a) Respondent company - Lushgreen Health Care Pvt. Ltd., is wound up and Official Liquidator is appointed as Liquidator of respondent company with all powers under the Companies
4/4 Act, 1956, including the power to take charge of all assets, business, affairs, books of accounts, records, documents, papers, vouchers, bills etc. of respondent and conduct its affairs and business in the course of winding up and to distribute its assets in accordance with law. Official Liquidator shall forthwith act on an authenticated copy of this order without waiting for any notification. Petition accordingly stands disposed.
(K.R. SHRIRAM, J.)