C.A. No. 2386 of 2012 in C.P. No. 179 of 1994
Decided on: 11/12/2012
Companies Act: Sections 454(5), 468, 477, 481 -Company under Liquidation -Official Liquidator(OL) Could not take possession of any moveable and immovable assets of the Company – no other assets available for realization – whether the company should be dissolved and liquidation proceedings be brought to an end- Held, Yes.
Brief Facts:
The respondent company was wound up on 17.09.1999 and put under liquidation proceedings. The registered office of the Company was located at New Delhi & factory premises at Noida (U.P). On reaching the registred office of the company by the Official Liquidator(OL), no signboard was found there; the same was the position with the factory premises;
As per the statements made by Vipin Sahni and Kiran Sahni, ex-directors of the company that the only asset owned by the company was factory at Noida, (UP) and which has been sold to Kalpataru Export (P) Ltd in 1994-95. Statement of Affairs was not filed by the ex-directors. Record has also not been handed over by them. In this scenario, the official liquidator could not take take possession of any moveable and immoveable assets of the Company.
Therefore, this application was filed under Section 481 of Companies Act, 1956 seeking dissolution of M/s. Trishakti Electronics (P) Ltd (Company).
Decision: Application allowed
Delhi High Court(Court) allowed the application filed for dissolution of the Company on the following reasons:
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Inspite of best efforts, the addresses of the other ex-directors could not be traced and on 21.02.2012, the OL had been directed to handover the claim notices Vipin Sahni for inviting claims. Claims were invited by publication in the newspapers.
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Subsequent to the above publication, no claims have been received except the claim of petitioning creditor i.e., Sri Ram Bearings Ltd, to the tune of Rs. 3,03,505.08/- along with interest at the rate of 8% p.a totalling to sum of Rs. 7,52,700/- was paid and an undertaking of ex-directors has been obtained that in case any claim arises in future i.e, secured creditor, unsecured creditor, workman or any other category, then the ex-directors will bear the liability.
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As per the books of accounts maintained by the office of OL, the fund of company as on 20.11.2012 is Rs. 89,724/- and no other assets were available for realization.
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Further, the court recollected the decision of Supreme Court in case of Meghal Homes (P) Ltd v. Shree Niwas Girni K.K. Samiti & ors (2007) it was held that – “When the affairs of the Company are completely wound up or the court finds that the OL cannot proceed further with winding up of company for want of funds or for any other reason, the court can make an order dissolving the company from the date of order. This puts an end on the winding-up process.
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In view of above decision of the supreme court and facts and circumstances of this case the court felt that the liquidation proceedings to be brought to an end. Consequently, M/s. Trishakti Electonics (P) Ltd was dissolved u/s. 481 of Companies Act, 1956.
Conclusion:
Based on the above reasons, the court has the authority to make an order for dissolution of the company when the affairs of the company are completely wound-up and the liquidator cannot proceed with winding up of company for want of funds or assets of the Company or any other reason.