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2022 DIGILAW 1518 (GUJ)

OL of M/s Yogi Polyster Ltd (In Liqn) v. NA

2022-11-07

BHARGAV D.KARIA

body2022
ORDER : 1. Heard learned advocate Ms. Bhoomi Thakore for the applicant. 2. By this report under Section 481 of the Companies Act, 1956, the official Liquidator has prayed for dissolution of the company, named, M/s. Yogi Polyester Ltd. (In Liquidation), which was ordered to be wound up vide order dated 21.07.2006 passed in Company Petition No.217 of 1998. 3. That the Official Liquidator appointed M/s. Harish P. Jain & Associates, Company Secretary at the Office of Registrar of Companies, Gujarat, Ahmedabad to inspect the records of the said company maintained by the office of the Registrar of Companies, Gujarat to find out the assets and properties, liabilities, address of Registered Office, factory premises, Secured Creditors, and names and addresses of the Ex-Directors of the company. That as per the search report after taking inspection of the records of the Registrar of Companies, Gujarat by the company secretary it was indicated that the assets and properties of the company in liquidation consisted of two premises one being registered office situated at Yogi House, Old Padra Road, Baroda as well as factory premises situated at 6/2, GIDC Industrial Estate, POR, Ramangamadi, Karjan, Dist. Vadodara. 4. It is further stated in the report that during the inspection of the record of the Register of Companies, Gujarat it was found that there are two creditor of the company in liquidation one being Bank of Baroda, Alkapuri Branch, Alkapuri, Baroda and ICICI Bank Ltd, 163, Backbay Reclamation, Bombay. 5. It is further stated in the report that in compliance of winding up order, the Office of the Official Liquidator had deputed its officials for taking over possession of the assets and properties of the company in liquidation. However, while taking possession of company Registered Office situated at “Yogi House”, Old Padra Road, Baroda, it was informed by ex-director of the company in liquidation that said premises were never belonging to company in liquidation and in support of his statement, said ex-director furnished documentary evidence on the basis of said evidence the Officials of the Official Liquidator could not take possession of Regd. Office. Thereafter, the Officials of the Official Liquidator visited company factory premises situated at 6/2, GIDC Industrial Estate, POR, Ramangamadi, Karjan, Dist. Office. Thereafter, the Officials of the Official Liquidator visited company factory premises situated at 6/2, GIDC Industrial Estate, POR, Ramangamadi, Karjan, Dist. Vadodara-391 243, on the site, they observed that Court’s Receiver appointed by DRT, Mumbai had taken possession of the said factory premises on the basis of OA filed by ICICI Bank, hence, the Officials of the Official Liquidator couldn’t take the possession of the said factory premises. 6. It is further stated in the report that the Official Liquidator filed compliance report by way of OLR No.180 of 2007 wherein praying various prayers including ratification for not taking possession of Registered office and factory premises of the company in liquidation. The same came to be allowed vide order dated 09.04.2007 passed in OLR No.180 of 2007, wherein it was further directed to invite claim from workmen under Section 529A of the Companies Act, 1956. 7. It is further stated in the report that the Official Liquidator filed OLR No.72 of 2007 inter-alia seeking permission to initiate proceedings under Section 454 (5) of the Companies Act, 1956 against ex-directors of the company in liquidation. The same came to be allowed, in compliance of the aforesaid order, the Official Liquidator filed criminal case being O. J. C. R. No. 08 of 2007.However, during pendency of the said case, ex-director of the company in liquidation filed Statement of Affairs before the Office of the Official Liquidator. Hence the aforesaid O.J.C.R. No. 8 of 2007 came to be disposed of vide order dated 27.12.2007 by this Court. 8. It is further stated in the report that, the DRT, Mumbai vide its order dated 11.02.2008 passed in Recovery Proceeding No.338 of 2005 confirmed the sale of company’s Factory premises 6/2, GIDC Industrial Estate, POR, Ramangamadi, Karjan, Dist. Vadodara-391 243 in favour of M/s. Tirupati Protrade Pvt. Ltd., for sale consideration of Rs.4,20,00,000/-. 9. The Official Liquidator in the meantime also invited claim by publishing advertisement in Newspapers namely “Indian Express” English daily and “Loksatta” Gujarati daily both in Baroda editions. However, pursuant to the said advertisement, the Office of the Official Liquidator has not received any claim from worker of the company in liquidation. 10. It is also stated by the Official Liquidator that he is not having any asset nor received any fund to proceed further with the winding up proceedings. 11. However, pursuant to the said advertisement, the Office of the Official Liquidator has not received any claim from worker of the company in liquidation. 10. It is also stated by the Official Liquidator that he is not having any asset nor received any fund to proceed further with the winding up proceedings. 11. Hence the Official Liquidator most respectfully submits that as per the provisions of Section 481 of the Companies Act, 1956 “when the affairs of a company have been completely wound up or when the Court is of the opinion that the liquidator cannot proceed with the winding up of a company for want of funds and assets or for any other reason whatsoever and it is just and reasonable in the circumstances of the case that an order of dissolution of the company should be made, the Court shall make an order that the company be dissolved from the date of the order and the company shall be dissolved accordingly. 12. It is also stated by the Official Liquidator that prior to dissolution of the company, the Official Liquidator vide letter dated 15.06.2021 addressed to the Registrar of Companies, Gujarat, Income-Tax Department, Bombay Stock Exchange, Secured Creditors and Ex-directors of the subject company informed that the Official Liquidator proposes to dissolve the said company and if they are having any objection, to raise the same. However, no response is received from Income tax department. However, the Bombay Stock Exchange vide its email dated 04.08.2021 and the ROC vide its letter dated 01.10.2021 informed that they are having no objection if the company is dissolved by this Court. Therefore, the Official Liquidator submitted that no objections were received against proposed dissolution of the Company in Liquidation. 13. It has been further stated in the report that as per the balance certificate issued by the Chartered Accountant P. C. Rathod & Co. 26.08.2022, funds available in the Company’s Bank Account are as under : Cash (Rs.) Bank (Rs.) FDR (Rs.) Nil Nil Nil 14. It is further stated in the report that it is not possible to proceed with the winding up of the Company in Liquidation for want of funds and assets. Relying upon the judgment of the Apex Court in the case of Meghal Homes Pvt. Ltd. Vs. It is further stated in the report that it is not possible to proceed with the winding up of the Company in Liquidation for want of funds and assets. Relying upon the judgment of the Apex Court in the case of Meghal Homes Pvt. Ltd. Vs. Shree Niwas Girni K.K. Samiti, reported in (2007) 7 SCC 753 , it is contended by the Official Liquidator that this Court may pass appropriate order of dissolution of the Company in liquidation. 15. The Official Liquidator has also further averred in the report that half yearly statement of accounts of the Company in Liquidation have already been filed before this Court as provided under Rule 298 of the Companies (Court) Rules, 1959. It was contended that in these circumstances, it is not possible for the Official Liquidator to further carry out the proceedings of winding up. 16. The Official Liquidator, relying upon the auditor's certificate dated 26.8.2022 no balance is available in the Bank Account of the Company. Moreover, no assets of the Company in liquidation are available. In light of the aforesaid facts, it was submitted that the report may be accepted and appropriate order of dissolution of the Company in liquidation may be passed as prayed for. 17. Having heard the learned advocate for the Official Liquidator and on perusal of the record of this report and in facts of this case and considering the ratio laid down by the Apex Court in the case of Meghal Homes Pvt. Ltd. (supra), the report deserves to be accepted. The Company, named, M/s. Yogi Polyester Ltd (In Liquidation) is hereby dissolved under Section 481 of the Act and the Official Liquidator attached to this Court stands discharged and is relieved as liquidator of M/s. Yogi Polyester Ltd. (In Liquidation). 18. The official liquidator is also permitted to make payment towards professional fees of Rs.1,500/- to M/s. P.C. Rathod & Co., Chartered Accountants towards preparation of Auditor’s Certificate from the Common Pool Account maintained by the Office of the Official Liquidator. 19. In case of any difficulty, the affected party, if aggrieved with the present order, may apply for reviewing the same as per the provisions of Section 559 of the Companies Act, 1956. 20. Accordingly, the report is allowed in the aforesaid terms.