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Gujarat High Court · body

2019 DIGILAW 1022 (GUJ)

Mansarovar Fincap Ltd. v. Mizza Yarn and Investment Ltd.

2019-10-22

A.J.DESAI

body2019
ORDER : A.J. Desai, J. 1. By this report under Section 481 of the companies Act, 1956, the Official Liquidator has prayed for dissolution of the company, named Mansarovar Fincap Ltd. which was ordered to be wound up vide order dated 04.10.2011 passed in Company Petition No. 81 of 2011. 2. Company Petition No. 81 of 2011 came to be preferred and this court, by order dated 04.10.2011, ordered the said company to be wound up and while so ordering, the official liquidator, attached to this court, has been appointed as the Liquidator with all the powers provided under the Act. Consequential upon such order of winding up, the official liquidator directed his officials at the office of Registrar of Companies ("the ROC for short) to inspect the record of the company maintained by the office of the ROC to know the assets and properties, liabilities, addresses of the Directors and the date of order of winding up. 3. The Official Liquidator compiled the following details: Name of Company Mansarovar Fincap Ltd. CIN No. U67120GJ1998PLC034784 Date of Incorporation 07.10.1998 Registered Office And factory 409, Atma House, Opp. Old RBI, Ashram Road, Ahmedabad – 380 009 Sr. No. Name of Ex-directors Addresses of Ex-directors 01 Shri. Nishit Pankaj Shah 404, Rudraksh Flats, Ellisbridge, Ahmedabad -380006 02 Shri Harish G. Setalvad N/4, Swastik Appartment, Narayan nagar Road, Paldi, Ahmedabad-380007 03 Smt. Alpa Nishit Shah 404, Rudraksha apartment Pritamnagar, Ellisbridge, Ahmedabad -380006 Further, the Official Liquidator observed that as per the records maintained by the Registrar of Companies, no charge exists in the name of the company hence there was no secured creditor of the company. 4. As per the schedule programme, the official liquidator deputed his Officials to take possession of the assets and properties of the company in liquidation. However, it was observed by the Official of Official Liquidator that the said premises was not belonging to company in liquidation & company had taken the said premises on rental-basis. Hence, the officials of Official Liquidator could not taken possession of the premises of the company in liquidation. 5. It was further observed by Official Liquidator that M/s. Vaikunth Finvest Ltd. (In Liqn.) was also having registered office at the aforesaid address. Hence, the officials of Official Liquidator could not taken possession of the premises of the company in liquidation. 5. It was further observed by Official Liquidator that M/s. Vaikunth Finvest Ltd. (In Liqn.) was also having registered office at the aforesaid address. Thereafter, the Official Liquidator filed a compliance report being Official Liquidator Report No. 68 of 2012 inter-alia praying the court to take on record that Official Liquidator had not taken possession of company's registered office situated at 409, Atma House, Opp. Old RBI, Ashram Road, Ahmedabad - 380 009. Vide a common order dated 04.02.2013 passed in Official Liquidator Report No. 68 of 2012 & Official Liquidator Report No. 77 of 2012, the official liquidator was directed to verify the title of the Registered office of the company in liquidation and then place the same before the Hon'ble High court. 6. In compliance of Order dated 04.02.2013, official liquidator had appointed Mr. Chaitanya Joshi, Panel Advocate for verification of title of registered office of the company situated at 409, Atma House, Opp. Old RBI, Ashram Road, Ahmedabad-380009. Consequently, Ld. Advocate had vide letter dated 19.09.2013 opined that registered office of the company in liquidation was utilized by the company in liquidation on rental-basis and the company in liquidation does not have a right title of interest in the said premises. Thereafter, Official Liquidator had filed a report being Official Liquidator Report No. 112 of 2013 before the Hon'ble Court alongwith the title search report of Mr. Chaitanya Joshi. The Hon'ble court had vide order dated 21.10.2013 accepted the said report. 7. The Official Liquidator has requested the ex-directors of the company in Liquidation under section 454 of the Companies Act, 1956 to submit Statement of Affairs and recording of their statement under Rule 130 of the Companies (Court) Rules, 1959. Accordingly, the ex-director of the company in liquidation had submitted statement of affairs dated 12.01.2012. On perusal of statement of affairs, it was noted that company is not having any asset and property. Further, as per statement of affairs no litigations were pending in the company in liquidation. 8. As per the requirement under Rule 130 of the Companies (Court) Rules, 1959, the Ex-Directors of the company have recorded their statement on 16.01.2012. On perusal of statement of affairs, it was noted that company is not having any asset and property. Further, as per statement of affairs no litigations were pending in the company in liquidation. 8. As per the requirement under Rule 130 of the Companies (Court) Rules, 1959, the Ex-Directors of the company have recorded their statement on 16.01.2012. On perusal of the Statement recorded by the Ex-Directors of the company, the ex-directors have stated that the company is not having any fixed assets and properties. 9. The provisions of the Companies Act call for the satisfaction of the court, which needs to consider that when the affairs of the company are completely wound up or when the court is of the opinion that the liquidator can not proceed for winding up or when the court is of the opinion that the liquidator can not proceed for winding up for want of assets or any other reasons, the dissolution should be made. The Court, in such circumstances, shall make an order to dissolve from the date of order. The decision of Meghal Homes Pvt. Ltd. vs. Shree Niwas Girni K.K. Samiti (2007) 7 SCC 753 is also along the line of paragraph 31 thereof, which deserves reproduction as under:-- "When the affairs of the Company had been completely wound up or the courts find that the official Liquidator cannot proceed with the winding up of the Company for want of funds or for any other reason, the court can make an order dissolving the Company from the date of that order. This puts an end to the winding-up process". 10. Prior Intimation letters of dissolution of the said Company also had been sent to the Income tax Department, Registrar of Companies, Gujarat, Secured Creditors and Ex-directors of the subject company on 18.09.2018. 11. By communication dated 15.10.2018, no Objection in dissolution of the said company received from the Registrar of Companies. 12. By communication dated 22.10.2018, the Income tax officer informed that scrutiny assessment proceeding u/s. 147 of Income Tax Act for the assessment year 2011-12 is pending. Hence, they had requested to keep the proceeding in abeyance. In this connection, the official liquidator had submitted that in the said company, the official liquidator is having a meagre fund of Rs. 12. By communication dated 22.10.2018, the Income tax officer informed that scrutiny assessment proceeding u/s. 147 of Income Tax Act for the assessment year 2011-12 is pending. Hence, they had requested to keep the proceeding in abeyance. In this connection, the official liquidator had submitted that in the said company, the official liquidator is having a meagre fund of Rs. 352/- in the account of the company in liquidation and not having any asset to discharge the liability of any creditors of the company in liquidation including Income Tax department as well as to carry-out further winding-up proceedings. 13. The Official Liquidator has also further averted that half yearly statement of accounts of the Company in liquidation has already been filed before this court as provided under Rule 298 of the Companies (Court) Rules, 1959. 14. The Official Liquidator has also contended that even after the order of dissolution that may be passed by this court as provided under 559 of the Act, the period of 2 years is available for anybody to raise the objection and file an appropriate proceedings before this court. 15. The Official Liquidator, relying upon the auditor's certificate dated 19.11.2018, has contended that Bank Balance of Rs. 352/- only and no assets of the Company in Liquidation are available. In the light of aforesaid, it is therefore submitted that the report may be accepted and appropriate order of dissolution of the Company in Liquidation may be passed as prayed for. 16. The Official Liquidator attached to this court shall intimate to the ROC the said order along with the copy of the order, who shall also make an entry of this in his books. 1.1 After such performance of duty, the Official Liquidator shall be discharged and relieved as official liquidator. It is being clarified that any liability of the company, if arises subsequently, ex-directors would be held liable. 1.2 Official liquidator shall transfer fund of Rs. 352/- in the said company's A/c. to Common Pool A/c maintained by the Official Liquidator. 17. In case of any difficulty, affected party if aggrieved with the present order, may apply for reviewing for the same. The Official Liquidator's Report is disposed of accordingly.