Court orders winding up of Hiya Overseas Pvt. Ltd. in favor of petitioner company

The court found in favor of the petitioner, a company incorporated under the laws of Kenya, in a petition for winding up Hiya Overseas Pvt. Ltd., the respondent-Company, under Sections 433, 434, and 439 of the Companies Act, 1956. The court noted the respondent-Company's failure to substantiate its defense regarding payment through M/s.Unisilk Limited and appointed the Official Liquidator as the Provisional Liquidator, directing necessary procedural steps to be taken. The court admitted the petition for winding up and scheduled a final hearing, ordering the advertisement of the petition in newspapers and granting a delay in the interest of justice.

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Issues Involved:
1. Petition for winding up under Sections 433, 434, and 439 of the Companies Act, 1956.
2. Alleged non-payment of dues by the respondent-Company.
3. Disputed defense by the respondent-Company regarding payment through M/s.Unisilk Limited.
4. Financial status and capability of the respondent-Company to pay its dues.
5. Appointment of Provisional Liquidator and related procedural directions.

Issue-wise Detailed Analysis:

1. Petition for Winding Up:
The petitioner, a company incorporated under the laws of Kenya, filed a petition under Sections 433, 434, and 439 of the Companies Act, 1956, seeking the winding up of the respondent-Company, Hiya Overseas Pvt. Ltd., due to its alleged inability to pay its debts. The petitioner requested the appointment of the Official Liquidator as the Liquidator of the respondent-Company and sought interim reliefs to restrain the respondent-Company from dealing with its assets.

2. Alleged Non-payment of Dues:
The petitioner claimed that it had exported goods to the respondent-Company, which had placed orders for various food grains. The petitioner raised invoices amounting to US$ 1,079,133, which were allegedly accepted by the respondent-Company. Despite repeated follow-ups, the respondent-Company failed to pay the outstanding amount. The petitioner served a statutory notice of demand on 01.04.2014, which was denied by the respondent-Company on 05.04.2014. The petitioner contended that the denial was unjustified and approached the court for winding-up proceedings, asserting that the respondent-Company was commercially insolvent.

3. Disputed Defense by the Respondent-Company:
The respondent-Company, in its affidavit-in-reply, claimed that payments for the transactions were made through M/s.Unisilk Limited, a company based in Hong Kong. The respondent-Company argued that it had made payments to M/s.Unisilk Limited, which was supposed to transmit the payments to the petitioner. The petitioner refuted this claim, stating that no such agreement was mentioned in the reply to the statutory notice and that the defense was an afterthought. The court noted that the respondent-Company's new defense was not substantiated by any material evidence and was inconsistent with its earlier stand.

4. Financial Status and Capability of the Respondent-Company:
The petitioner argued that the respondent-Company was in debt to the State Bank of India, which had issued public notices and initiated proceedings under the SARFAESI Act and RDDB Act. The petitioner claimed that the respondent-Company's assertion of being a profit-making unit was false. The court observed that the respondent-Company had not produced any balance sheets or financial statements to substantiate its claim of a turnover of rupees one hundred crores. The court found the respondent-Company's assertion of financial capability to be prima facie false.

5. Appointment of Provisional Liquidator and Procedural Directions:
The court admitted the petition and directed the Registry to notify the petition for final hearing on 10.03.2016. The court ordered the admission of the petition to be advertised in the English daily newspaper "The Times of India" and the Gujarati daily newspaper "Jansatta." The Official Liquidator attached to the court was appointed as the Provisional Liquidator of the respondent-Company and was directed to take over the charge and possession of the assets, prepare an inventory of the office premises, books of accounts, and other assets. The court granted a request by the respondent-Company's counsel to delay the advertisement of the petition for two weeks in the interest of justice.

Conclusion:
The court found that the petitioner had prima facie established its case, noting the respondent-Company's failure to substantiate its defense regarding payment through M/s.Unisilk Limited. The court admitted the petition for winding up and appointed the Official Liquidator as the Provisional Liquidator, directing necessary procedural steps to be taken.

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