NCLT New Delhi-IV (09.04.2021) in Pradeep Singh Deswal Vs. M/s Pooja Roller Floor Mills Pvt. Ltd. & Ors. [C.P.No. 84(ND)/2020 ] held that;
The Petitioner states that in order to realize the value of the said property and also in order to ensure the fair distribution of the said value to the Stakeholders of the Respondent No.1, the Petitioner seeks to invoke the provisions of Section 271(e) of the Companies Act, 2013 so the Respondent No.1 Company can be put into liquidation and the value of the said property can be realized and distributed by the Company Liquidator in accordance with applicable law.
Excerpts of the Order;
# 1. The Company Petition bearing No. 84(ND)/2020 is filed by the Petitioner Mr. Pradeep Singh Deswal being the contributory of the Respondent No. 1 M/s Pooja Roller Floor Mills Pvt Ltd U/s 271(e) and Section 248(8) of the Companies Act, 2013 read with Section 255 of the Insolvency and Bankruptcy Code, 2016 by inter alia seeking to wind up the Respondent No.1 Company with all consequential directions as main relief.
# 2. The Petitioner is a contributory holding 2991 equity shares and the same are registered in his name since incorporation of the Company and therefore met with the requirement as prescribed in Section 272(2) Companies Act, 2013. The Petitioner has served the copy of the Petition to other Directors of the Respondent No.1 Company through email dated 21.11.2020.
# 3. The Respondent No.1 Company was incorporated as a Private Limited Company on 09.11.1981 with an Authorized Capital of Rs.20,00,000/- and Subscribed Capital and Paid-up Capital of Rs. 10,50,000/-. The CIN of the Respondent No.1 Company is 15311DL1981PTC012614 and its registered office is at 30, Community Centre, Ashok Vihar, New Delhi 10052. The Respondent No.1 Company is involved in the business of manufacturing of grain mill products, starches and starch products and prepare animal feed.
# 4. Brief facts leading to the filing of the present Petition are that due to unfortunate circumstances the directors and promoters could not carry out the business activity upto 1994. It is submitted that due to the adverse market impact, the business of the Respondent No.1 Company thereafter incurred losses and thereafter the business could not be continued by the directors and promoters since 1994. The Respondent No.1 Company could not comply with any statutory filing with the RoC and the PAN was never applied due to shutting down of the business in the said year. The name of the Respondent No.1 Company was struck off under Section 560 of the Companies Act, 1956 by the RoC. The status of the Respondent No.1 Company is shown as struck off in the Company's master data.
# 5. The Petitioner submits that the Respondent No.1 Company only has a piece of Agricultural land having substantial value as an asset located at Khasra No.397/11(9-0), 20/1(6-9) Village Binjhol, Tehsil Panipat. The registered sale deed dated 13.05.1981 has been placed on record.
# 6. The Petitioner has placed on record the Statement of Affairs of the Company dated 25.06.2020 which shows a fixed asset (one parcel of land) to the value of Rs. 15,37,758/-. The Petitioner has also placed on record the financial statements for the year 1993-94 of the Respondent no.1 Company which reflects that there are no assets other than the land and no liabilities or statutory demand pending against the Respondent No.1 Company.
# 7. The Petitioner has placed on record the no dues certificate issued by the Financial Creditor “Haryana Financial Corporation” dated 12.08.1998 and the charge of the above-mentioned Financial Creditor has been vacated in the revenue records on the land measuring 15 kanal 9 marla situated at village Binjhal, Panipat which was mortgaged to the financial Creditor vide mortgaged deed dated 26.12.1884.
# 8. The Tribunal vide its order dated 24.11.2020 directed RoC and the Income Tax Department to file their objections if any, within two weeks however, none was filed hence, it is resumed that there are no objections to be raised by the said authorities.
# 9. It is submitted by the Petitioner that the directors of the Company, who are also the shareholders and contributories to the Company in the aforesaid matter have also given unconditional undertaking and/or indemnity dated 17.11.2020 as required under the provision of Section 248 of the Companies Act, 2013, to settle all the lawful claims arising in future.
# 10. The registered office of Respondent No. 1 Company is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this Petition.
# 11. The Petitioner states that in order to realize the value of the said property and also in order to ensure the fair distribution of the said value to the Stakeholders of the Respondent No.1, the Petitioner seeks to invoke the provisions of Section 271(e) of the Companies Act, 2013 so the Respondent No.1 Company can be put into liquidation and the value of the said property can be realized and distributed by the Company Liquidator in accordance with applicable law.
# 12. For the aforesaid reasons and circumstances of the case, and the law on the issue, we are of the considered opinion that prima facie case is made out by the Petitioner. Mr Tarun Batra, Insolvency professional having registration number IBBI/IPA-001/IP P00572/2017-18/11013 as proposed by the Petitioner to be appointed as the Company Liquidator for winding up of the Respondent No.1 Company.
# 13. As a result, by exercising powers conferred on the Tribunal, especially under Section 273 and other relevant provisions of the Companies Act, 2013, we hereby pass the following directions:
a. We admit the Company Petition 84(ND)/2020 and appoint Mr. Tarun Batra as the Company Liquidator for winding up of the Respondent No.1 Company;
b. The Company Liquidator shall file a declaration disclosing conflicts of interest or lack of independence in respect of his appointment if any, within 7 days of appointment; C.P.No. 84(ND)/2020
c. We direct the existing Management of the Respondent No.1 Company to extend full cooperation to the Company Liquidator to carry out his duties under the extant provisions of the Companies Act, 2013. It will be the duty of such of the persons as are liable to submit the books of account of company completed and audited up to the date of order under section 274(3) to attend on the Company Liquidator at such time and place as he may appoint and to give him all information he may require;
d. The Petitioner is directed to make appropriate publication in the Business Standard English and Hindi Edition, within 14 days of the date of this order;
e. The Company Liquidator shall initiate appropriate action in accordance with the extant provisions of the Companies Act, to take control of the Management of the Respondent No.1 Company and to take custody or control of the property, effect and actionable claims to which the Respondent No.1 Company is or appear to be entitled to and take such steps and measures, as may be necessary, to protect and preserve the properties of the Respondent No.1 Company and to avoid misuse of the property;
f. The Company Liquidator is further directed to strictly adhere to the extant provisions as applicable in the instant case, as mentioned under Chapter XX Part 1 of the Companies Act, 2013;
g. The Registry is directed to communicate this order to all the Parties to the case and also to the Official Liquidator; cased
h. The Petitioner shall serve a certified copy of this order on the Registrar of Companies not later than one month from this date;
# 14. The Petition C.P.No. 84(ND)/2020 is allowed and disposed off in terms of above orders
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The Companies Act, 2013.
# Section 271. Circumstances in which company may be wound up by Tribunal. - A company may, on a petition under section 272, be wound up by the Tribunal, —
(a) if the company has, by special resolution, resolved that the company be wound up by the Tribunal;
(b) if the company has acted against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality;
(c) if on an application made by the Registrar or any other person authorised by the Central Government by notification under this Act, the Tribunal is of the opinion that the affairs of the company have been conducted in a fraudulent manner or the company was formed for fraudulent and unlawful purpose or the persons concerned in the formation or management of its affairs have been guilty of fraud, misfeasance or misconduct in connection therewith and that it is proper that the company be wound up;
(d) if the company has made a default in filing with the Registrar its financial statements or annual returns for immediately preceding five consecutive financial years; or
(e) if the Tribunal is of the opinion that it is just and equitable that the company should be wound up.”
# Section 272. Petition for winding up. - (1) Subject to the provisions of this section, a petition to the Tribunal for the winding up of a company shall be presented by—
(a) the company;
(b) any contributory or contributories;
(c) all or any of the persons specified in clauses (a) and (b);
(d) the Registrar;
(e) any person authorised by the Central Government in that behalf; or
(f) in a case falling under clause (b) of section 271, by the Central Government or a State Government.
(2) A contributory shall be entitled to present a petition for the winding up of a company, notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities, and shares in respect of which he is a contributory or some of them were either originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months immediately before the commencement of the winding up or have devolved on him through the death of a former holder.
(3) The Registrar shall be entitled to present a petition for winding up under section 271, except on any of the grounds specified in except on the grounds specified in clause (a) or clause (e) of that sub-section:
Provided that the Registrar shall obtain the previous sanction of the Central Government to the presentation of a petition:
Provided further that the Central Government shall not accord its sanction unless the company has been given a reasonable opportunity of making representations.
(4) A petition presented by the company for winding up before the Tribunal shall be admitted only if accompanied by a statement of affairs in such form and in such manner as may be prescribed.
(5) A copy of the petition made under this section shall also be filed with the Registrar and the Registrar shall, without prejudice to any other provisions, submit his views to the Tribunal within sixty days of receipt of such petition.”
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