ARABIAN OILFIELD SUPPLIERS & SERVICES vs GREKA DRILLING (INDIA) LIMITED
CO.PET. 88/2016 & CO.APPL. 381/2016, CO.APPL. 382/2016, CO.APPL. 1514/2018
Facts:
1) Company is engaged in the business of providing drilling services for the oil and gas sector, and is incorporated as a „Foreign Company‟ under the Companies Act, 1956. Pursuant to certain discussions and negotiations, the respondent company placed a purchase order bearing No. GDIL PO 2014255 dated 11.12.2014, with the petitioner company, for the supply of CIF Kolkata Port casing material of desired specifications. The said purchase order was for an amount of US$ 738,380/. The respondent placed another purchase order bearing No. GDIL PO2014277 dated 24.12.2014, for the supply of casing material of a different specification, and said order amounted to US$ 199,466,50
2) Petitioner duly supplied the goods to the respondent company as per the purchase orders and raised certain invoices against the same dated 29.12.2014, 05.02.2015 and 15.02.2015 for a total amount of US$ 818,496.58/-. Further, it is stated that except the amount of US$ 147,111.66/-, paid by the respondent company in instalments, and the last payment having been made in August 2015, the respondent company did not make any further payments. Thereafter, the petitioner company raised certain further invoices in respect of delay in payments and the same amounted to US$ 66,957.34/-.
3) Petitioner company was constrained to serve a statutory legal notice dated 15.10.2015 under Section 434 of the Act, calling upon the respondent company to make good the payment of US$ 723,193.03 along with interest @ 18% per annum with effect from the dates of the respective invoices raised. It is stated that the said legal notice was received by the respondent company on 23.10.2015, and yet they did not respond to the same, nor did the respondent company comply with the demand raised therein and failed/neglected to pay the sum demanded.
4) Present company petition has been instituted under Section 433 (e) and (f) read with Sections 434 and 439 of the Companies Act of 1956, seeking winding up of the respondent company – M/s. Greka Drilling (India) Limited, predicated on the non-payment of outstanding dues to the tune of US$ 723,193.03/- along with due interest.
Issue: Whether the petition can be allowed ?
Arguments:
Respondent:
1) Counsel submitted that since it is a Foreign Company, the winding up proceedings instituted against it are not maintainable. The above-noted appeal was disposed of by a Division Bench of this Court vide order dated 12.11.2018, granting liberty to the respondent company (appellant therein) to file a review petition.
Decision: Hon’ble HC transferred the petition to NCLT>
Rationale:
1) It held that a careful perusal of the section 583 of the Companies Act 1956 would clearly bring out that the respondent company is an unregistered company and the circumstances under which an unregistered company may be wound up are indicated vide sub-clause (4) to Section 583 of the Companies Act. A fortiori, since the respondent company has been unable to pay its debts, winding up proceedings against the company are clearly maintainable.
2) It held that while it is the opinion of this Court that the present winding up petition is maintainable against the respondent company, since these proceedings are still at a nascent stage and no substantive orders have been passed towards the winding up of the respondent company, it would be appropriate for the same to be transferred to the National Company Law Tribunal.
Order:
