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2017 DIGILAW 227 (CAL)

Gastel India Ltd. (In Dissolution) and Central Coalfields Ltd. v. Official Liquidator, High Court, Calcutta

2017-02-28

I.P.MUKERJI

body2017
JUDGMENT : I.P. Mukerji, J. This is a very interesting matter. Central Coalfields Limited, has applied before this Court under section 559 of the Companies Act, 1956. It wants discharge of the order dated 15th December, 2006 passed by this Court in a member's voluntary winding up matter concerning Gastel India Ltd. (the company). The order of this Court noted that the Official Liquidator had sought dissolution of the company upon compliance with all formalities and that the said company was to be dissolved with effect from 28th November, 2006. 2. The applicant has a very old claim against this company amounting to Rs. 14,43,528.73/-. The claim is for the difference of price between Grade-C and Grade-B coal supplied by the applicant to the company. The transaction appears to be from or about May 1998 to August 1999. The claim on the date of affirmation of the application with interest was Rs. 34,08,309.73/-. 3. In 2007 the petitioner instituted a suit in this Court against the company (C.S. 48 of 2007) for recovery of the said sum. The writ of summons could not be served on the defendant company. Only when one Ashok Kumar Jain the defendant No.2 describing himself to be a director and shareholder of the company in the plaint, made an application for rejection of the plaint, on 22nd January, 2013 that the applicant learnt that the company was dissolved by the said order of this Court dated 15th December, 2006 with effect from 28th November, 2006 in a member's voluntary winding up. The interim proceeding in the suit Court was adjourned to enable the applicant to take action before this Court, it is learnt. 4. Section 485 of the Companies Act, 1956 provided that when a company has passed a resolution for voluntary winding up, it shall, within fourteen days of the passing thereof, give notice of it in the Official Gazette and in some papers circulating in the district where the registered office of the company is situated. Under section 559 of the said Act the Court has the power to declare the dissolution of the company as void. 5. Mr. Hoy for the applicant argued that his client had no notice of the voluntary winding up. The resolution to wind up the company had not been advertised and was void. Under section 559 of the said Act the Court has the power to declare the dissolution of the company as void. 5. Mr. Hoy for the applicant argued that his client had no notice of the voluntary winding up. The resolution to wind up the company had not been advertised and was void. This is the only ground on which the applicant challenges the dissolution of the company. 6. The reports prepared by the Official Liquidator and the Registrar of Companies, West Bengal are on record and circulated to the parties. The report of the Registrar of Companies is considered by this Court. It was made on 16th December, 2016. It says that no copy of the Official Gazette could be found despite enquiries being made with the National Library, State Government Authorities and Government Press etc. Some documents were annexed to it. An advertisement published in the Statesman on 29th June, 2004 stated that a Special Resolution of the company was passed on 26th June, 2004 that it be wound up voluntarily and that Sri Arijit Prasad Jain of 21, Ganesh Chandra Avenue, Kolkata-700013 be appointed liquidator for the purpose of this winding up. On 28th June, 2004 the company wrote to the publisher of the Official Gazette, Kolkata that Arijit Prasad Jain had been appointed as the liquidator of the company by the said special resolution dated 26th June, 2004 at an extra ordinary general meeting of the company and that this information be published in the Official Gazette. Annexed to the report, there is also a "cash bill" dated 28th June, 2004 issued by the Government of West Bengal publication Alipur from its sales office at New Secretariat Building, Kolkata, acknowledging receipt of Rs. 324/-. There is another receipt for Rs. 228/- annexed to the report of the Registrar of Companies. The first notice referred to the notice of appointment whereas the second notice referred to the notice. 7. Although the Gazette has not been unearthed there is a strong pre-ponderance of probability that the special resolution was duly advertised by the private liquidator in the newspaper and in the Kolkata Gazette and that it was so advertised. 8. The first notice referred to the notice of appointment whereas the second notice referred to the notice. 7. Although the Gazette has not been unearthed there is a strong pre-ponderance of probability that the special resolution was duly advertised by the private liquidator in the newspaper and in the Kolkata Gazette and that it was so advertised. 8. Again it was sought to be argued on behalf of the applicant that they had no notice on the voluntary winding up because the portal of the Ministry of Corporate Affairs recorded the name of the company upto 21st June, 2013. The company still has a CIN number assigned to it. The articles of association do not prescribe any fixed duration of the company. 9. In my opinion all these points are not at all tenable. 10. The transaction between the applicant and the company was from or about May, 1998 till August, 1999. The applicant claims to have been entitled to Rs. 14,43,528.73/- as the balance price of goods sold and delivered to the company together with interest, adding to 34,08,309.73 as on the date of verification of this application. It does not appear from the petition that the applicant was at all vigilant in pursuing their claim. Otherwise, when the cause of action arose in August, 1999 why would the applicant wait till April 2007 to file a suit? Why would the applicant not keep any track of the company? Why would the applicant have to wait till 22nd January, 2013 to ascertain whether its creditor of 1998-1999 was still alive or not? 11. There is no element of doubt in my mind that the applicant is guilty of gross delay and laches. 12. There is no fault on the part of the company. It is the shareholders or directors who take steps for voluntary winding up of the company and for appointment of a private liquidator. The liquidator, in my opinion, has taken all reasonable steps available to him in law to advertise the voluntary winding up. The company has been legitimately dissolved, long ago by this Court by its order dated 15th December, 2006. 13. There is no merit in this application. It is accordingly dismissed. 14. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.