20041029 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISCELLANEOUS APPL. NO. 12 OF 2004

IN THE MATTER OF COMPANIES ORDINANCE

AND

IN THE MATTER OF FAHARI BEVERAGE LIMITED

BETWEEN NAS HAULIERS LIMITED ...................... PETITIONER AND FAHARI BEVERAGE LIMITED ....... 18 T RESPONDENT REGISTRAR OF COMPANIES ........ 2ND RESPONDENT

RULING KIMARO, J. This is a petition for the winding up of FAHARI BEVERAGE LIMITED filed under Sections 167 (e) and (f), 168 and 169 of the Companies Ordinance - Cap.212 and Rule 31 (1) of the Winding Up Rules. The winding up of the Company is sought on the ground of its failure to meet its liabilities. In the year 2001, Commercial Case No.158/2001 was instituted by the Petitioner against the Respondent 1n this court. Subsequently, on 19th September 2002, the parties recorded a consent judgment. In that consent judgment, the respondent agreed to pay the petitioner, USD 25,133 after a moratorium of twelve months. Mr. Amin Lakhani, the only witness who testified for the petitioner told this court that twelve months lapsed and no single cent was paid todate. The pleadings and the consent settlement order for Commercial Case 158/2001 were tendered in court as exhibits Pl to P3 respectively. Correspondences exchanged between Mr. Kiwango and Mr. Eric· S. Ng'amaryo about payment of the amount of the consent order and a caution that a petition for the winding up of the company would be filed if there was a default were tendered as exhibits P4 and PS. \. __ ' The petition has not been contested. As the proceedings will reflect, the respondent failed to comply with the mandatory provisions of Rule 35 (1) of the Companies Winding Up Rules by filing an affidavit in opposition to the

petition within seven days. An opportunity was afforded to the respondent by this court on 4/06/2004. When the petition was called again to see whether there was anything from the respondent, the records showed that no affidavit to oppose the 2 \ i petition was filed. Instead, it was only a notice for intention to appear which was given. Other creditors also gave notice to appear under Rule 33 of the Companies (Windipg Up) Rules 1929. These are HR & SONS LIMITED and LEISURE TOURS & HOLDIGAYS LIMITED. They did make appearance in court. Further testimony of the petitioner is that the respondent has no financial capacity to pay the debts. The witness requested the court to issue a winding up order of the respondent company plus costs. The petition is filed under Section 167 (e) and (f) of the Companies Ordinance. The provisions give circumstances which may warrant the winding up of the company. That is when the company is unable to pay its debts and if the court ',~-' is of opinion that it is just and equitable that the company should be wound up. The definition of inability to pay debts is given in Section 168. The inability to pay arises where the creditor to whom the company is indebted in a sum exceeding T.shs 1000/= fails to settle the debt for three weeks after a demand notice to pay has been served on the company or where the decree is 3 returned unsatisfied or where it is

proved to the satisfaction of the court that the company is unable to pay its debts. In this petition there is no doubt that a consent judgment was entered on 19/09/2002. The payment under the consent judgment had to be made after a period of 12 months from 30th September 2002. This means that payment had to start from 30 th September 2003. PWl gave his evidence in court on 4/08/2004. He finalized his testimony on 27/09/2004. That was a year since when payment under the consent judgment matured. Todate no payment has been" made. The others who gave notices to appear are also creditors. The testimony of PW 1 together with the notices to appear given by other creditors who appeared and the documents tendered in court as exhibits are sufficient evidence that the \.__ respondent has failed to pay its debts. I accordingly order that FAHARI BEVERAGE LIMITED be and is hereby ordered to be wound up because of high indebtedness and failure to pay debts. The petitioner is also granted costs. N.P.KIMARO,

JUDGE 27/10/2004 ' 4 • Date: 29.10.2004 Coram: Hon. N.P.Kimaro, J. For the Petitioner - Mr. Mnganizi. For the 1st Respondent - Mr.Sipemba/Mr.Kasikila. For the 2 nd Respondent-Absent. For the H & R Limited- CC: R. Mtey. Court: Ruling delivered today. Order: I order that FAHARI BEVERAGES LIMITED be wound up. The petitioner is also granted costs. N.P.KIMARO,

JUDGE 29/10/2004 Mr. Mnganiz: I pray that Mr. Biharilal Keshavji Tanna be appointed a Liquidator of the Company . Order: Mr. Biharilal Keshavji Tanna•is appointed a Provisional Liquidator of FAHARI BEVERAGES LIMITED. N.P.KIMARO,

JUDGE 29/10/2004 993-words jd. 5