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Transworld Hire Purchase India Ltd. Vs. Joy C. and Ors. - (High Court of Kerala) (16 Oct 2020)

When there is no specific denial against the assertions made by the creditors, it implies admission

MANU/KE/2831/2020

Company

Present are appeals preferred under Section 483 of the Companies Act, 1956, read with Section 5 of the High Court Act, challenging the correctness of the judgment passed by the learned Single Judge in Company Petitions. Respondents in present appeals moved present Court under Section 433(e) read with Sections 434(a) and 439(b) of the Act, seeking to wind up the Appellant company. They claim that, they are creditors of the company, that huge amounts are due to them from the company, inspite of repeated demands the amounts were not repaid, and thus, it became clear that, the company is unable to repay the debts due to the creditors and thus, they wanted the company to be wound up.

Against the specific allegation of deposits having made, the company has not given any specific denial, instead evasive averments are made in the counter affidavit. It is trite that when there is no specific denial against the assertions made by the creditors, it implies admission. All these company petitions were filed after sending registered notices under Section 434(1) of the Act, addressed to the registered office of the Company. But all the notices were returned un-served with the endorsement that the addressee had left the station.

In the counter affidavit, the Appellant had stated that he has sufficient assets to pay off the debts, at least within one year time, by raising funds he will be able to clear the liabilities. Such a statement was given on 1st January, 2013. The impugned judgment was passed on 21st May, 2014, more than 16 months after making such an averment. By the time, if the offer was made in right earnest, he would have settled at least some of the liabilities. But there was no material to infer that any positive step was taken in that direction. That was how the learned Single Judge made the observation that, the hope nursed by the Appellant on the revival of the business was without any bonafides.

Worsening the case of the Appellant, even after lapse of more than six years, when these appeals were taken up, there is no suggestion that the situation has improved. That means, the Company has become commercially insolvent. Again, the contention of the Appellant that the Company is hopeful of reviving the business, the averment remains on the papers.

Materials produced with the company petitions show that, large number of creditors is awaiting in the queue, after making deposits in the schemes floated by the company. Lack of bonafides is writ large in the conduct of the Appellant which dis-entitle it to get any relief. The Company is unable to discharge the liabilities created in the name of the Company. There is no reason to interfere with the finding of the learned Single Judge. Appeal dismissed.

Tags : INSOLVENCY   WINDING UP   VALIDITY  

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