In re Viti Fresh Supplies Ltd [2011] FJHC 776; Winding Up Action 54.2011 (28 November 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Winding Up Action No. 54 of 2011

IN THE MATTER OF VITI FRESH SUPPLIES LIMITED

AND

IN THE MATTER OF THE COMPANIES ACT 1983 SECTION 221.

BEFORE: Master Deepthi Amaratunga

COUNSEL: Ms. Neelta A. for the Petitioner
M A Khan Esq for the Respondent Company.

Date of Ruling: 28th November, 2011.

RULING

1. INTRODUCTION
   

1. Plaintiff filed this action for winding up and the matter was fixed for hearing on 26th September, 2011 but on 23rd September, 2011 the Respondent Company filed an application seeking enlargement of time period for the filing of the affidavit in opposition, which was neither issued by the court nor served or informed to the Petitioner's counsel and the application was objected. The said application was filled by way of 'inter partes motion' and it was neither issued nor served to the Petitioner and it was filed one day prior to the hearing of the Winding Up application. The Respondent has not complied with the Winding Up Rules again in filing this application for extension of time and the said application is dismissed.
   

2. LAW AND ANALYSIS
   

2. The Petitioner filed this action to wind up the Respondent Company and the Petition for Winding Up was filed on 1st August, 2011. It was issued by the Registry on 8th August, 2011 and the affidavit verifying the petition was filed on 9th August, 2011.
   
3. The Winding Up Petition along with the affidavit verifying petition was served to the Respondent on 10th August, 2011.
   
4. The Respondent Company filed the 'notice to opposition' on 23rd August, 2011 but failed to file any affidavit in opposition with in the stipulated time period.
   
5. The Companies Winding Up Rules contained the time period for the filing of affidavit in opposition. Rule 31 of the Companies winding Up Rules states as follows
   

'31(1) Affidavit in opposition to the petition shall be filed within 7 days of the filing of the affidavit verifying the petition is filed, and notice of the filing of every such affidavit shall be given to the petitioner or his barrister and solicitor on the day on which such affidavit is filed'

6. It should be noted that the Petitioner in its petition for winding up has stated that the Respondent Company was served with notice in terms of Section 221 of Company Act and no payment was made and eight weeks had lapsed since the notice of the Respondent Company on 1st August, 2011.
   
7. The Respondent neither paid the said demand nor has filled affidavit in opposition within the stipulated time period. The notice in terms of Section 221 of Companies Act was served in June, 2011 and this application for winding up was filled in August, 2011.
   
8. On 23rd September, 2011 the Respondent Company has filled an application seeking extension of time when the matter was fixed for hearing on 26th September, 2011.
   
9. Rule 201 of Companies Winding Up rules states as follows
   

'The Court may, in any case in which it sees fit, extend or abridge the time appointed by these Rules or fixed by any order of the court for doing any act or taking any proceeding.'

10. The Discretion is granted to the court to extend the time period, but it has to be exercised judiciously without prejudice to all the parties to a matter before the court.
    
11. Though I gave an opportunity to file written submission to both parties no case law on this point was submitted.
    
12. The discretion has to be considered as a general discretion and the grounds alleged in the affidavit seeking extension was neither issued nor served to the Petitioner. The said affidavit seeking extension was filled on 23rd September (Friday), 2011 where as the matter was fixed for hearing on 26th September, 2011 and it should be noted that the Respondent Company has made this application by way of inter partes motion.
    
13. It should be noted that Rule 7(2) of Companies (Winding Up) Rules states
    

'Every application in chambers shall be made by summons as in Form No 2 set out in the schedule which, unless otherwise ordered, shall be served on every person against whom an order is sought not less than 3 clear days before the day named in the notice for hearing the summons, and shall require the person or person to whom the summons is addressed to attend at the time and place named in the summons'

14. The application seeking extension of time has to comply with the requirements contained in the Rule 7(2) of Companies (Winding Up) Rules and it has not filed within time as it was filed one day before the hearing and it has not been issued by the registry.
    
15. So it is clear that the said application by the Respondent has to be rejected in limine as it does not conform to the procedure and the form and also the time period granted for such an application. It is also noted that the Respondent is making these applications without following the rules, that would make it an abuse of process.
    
16. So, the discretion granted to court cannot be exercised in favour of the Respondent applicant as it has again failed to comply not only with the time period required for such an application but also has failed to comply with the form and the procedure as well. There is no summons seeking extension of time as required in Rule 7(2) of the Companies (Winding Up ) Rules and only an inter partes notice of motion is filed . The 3 day time period has also not been complied with as it yet to be issued by the court as it was filled on the day before the hearing.
    

100. THE FINAL ORDERS
     

17. The application for extension of time is rejected and the application filed on 23rd September, 2011 is struck off.
    
18. The matter is fixed for hearing on 5th December, 2011
    

Dated at Suva this 28th day of November, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva