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Wednesday, September 5, 2012

Company is to be dissolved when all the claims has been settled and there are no assets to realize

Summary: Relying upon the decision passe by Hon'ble Supreme Court in the case of Meghal Homes (P) Ltd. v. Shree Niwas Girni K.K. Samiti, Hon'ble HC Delhi came to conclusion that when the affairs of the Company had been completely wound up or the Court finds that the Official Liquidator can not 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. 

IN THE HIGH COURT OF DELHI
Raj Kumar Sood
vs.
Sood Tech. (P.) Ltd.
MS. INDERMEET KAUR, J.

CO. PETITION NO. 354 OF 2005

CO. APPLICATION NO. 1339 OF 2012

JULY 26, 2012
-----------------

ORDER

1. This Application has been moved by the Official Liquidator attached to this Court under Section 481 of the Companies Act, 1956 (for short "the Act") inter alia praying that the ex-directors to deposit a sum of Rs. 50,000/- as liquidation expenses and the Official Liquidator may be permitted to transfer the said amount to common pool. It is also been prayed that the Company M/s. Sood Tech Private Limited (in liqn.) may be dissolved and the Official Liquidator may be discharged from further proceedings. It is also prayed that the Official Liquidator may be permitted to transfer the balance fund available in the company's account to the Reserve Bank of India after making payment/creating provision or making payment towards the government fee, audit fee and liquidation expenses and the Official Liquidator may be permitted to close the books of account of the company.

2. The Official Liquidator states in the application that this Court vide order dated 10.10.2006 had appointed the Official Liquidator as its Provisional Liquidator. The final winding up order was passed on 12.01.2010 and the Official Liquidator attached to this Court was appointed as the Liquidator.

3. It is also stated that this Court on 16.2.12 has directed the Official Liquidator to file an application U/s 481 of the Companies Act, 1956 for dissolution of the Company with a further direction to the Official Liquidator to clearly indicate the cost of the liquidation proceedings.

4. It is stated that a team of the Official Liquidator visited at L-2A, Malviya Nagar, New Delhi (registered office) on 8.12.06 for taking possession of the assets of the Company (In Liqn.). Due to the circumstances explained in the application, the possession of the Regd. Office of the Company (In Liqn.) at L-2A, Malviya Nagar, New Delhi could not be taken.

5. It is further stated that in compliance of order dated 10.10.06, a team of the office of Official Liquidator also visited 59/5, New Rohtak Road, New Delhi on 9.12.06 for taking possession of the assets of the Company (In Liqn.) but were informed that there are no assets or books of accounts and office of M/s. Sood Tech. Pvt. Ltd. at 59/5, New Rohtak Road, New Delhi.

6. It is stated that Sh. Sudhir Sood, Managing Director of the company (in liqn), during the recording of the statement has informed that the records of the company (in liqn) was lying at the factory premises located at Noida and at the Registered office. He further informed that UPFC had taken the factory premises and sold the same under SARFASI Act.

7. It is also stated that the Statement of Affairs initially filed by Sh. R.K. Sood which was scrutinized by the office of Official liquidator revealed that the company (in Liqn.) has no assets as all the Fixed Assets & factory premises were taken over by UPFC and sold subsequently by them during the Year 2006-2007. Further, there are no loans against the Company (in Liqn.) and the company (in Liqn.) was declared sick in the year 1999.

8. It is stated that in terms of order dated 03.11.2011, the Official Liquidator invited claims from the secured & unsecured creditors and workmen of the company (in Liqn.). However, no claims were received by the Official Liquidator in response to the claim notice published on 02.12.2011.

9. It is stated that there are no other assets are available for realization. It is further stated that as per the books of account maintained in the office of Official Liquidator the fund position of Company is Rs.(-) 200. It has been prayed that since all claims of the company (In Liqn.) have been settled and no other assets were available for further realization and no useful purpose will be served in continuing with the winding-up process, the Official Liquidator may be discharged and the company be dissolved under section 481 of the Companies Act, 1956.

10. In the case of Meghal Homes (P) Ltd. v. Shree Niwas Girni K.K. Samiti [2007] 78 SCL 482, the Supreme Court, inter alia, in paragraph 31 thereof, held as under :-

"................ when the affairs of the Company had been completely wound up or the Court finds that the Official Liquidator can not 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."

11. In view of the above decision of the Supreme Court and the facts and circumstances of this case, the liquidation proceedings deserve to be brought to an end. Consequently, M/s. Sood Tech Private Limited is dissolved. Liquidation expenses of Rs. 50,000/- shall be borne by the ex Directors in equal proportion i.e. Rs. 10,000/-; the ex. Directors, namely, Dr. Sudhir Kumar Sood, Mr. Anoop Kumar Sood, Mr. Raj Kumar Sood, Mr. Balbir Sood and Mr. Vinod Ahuja (all are represented through their counsel) are directed to deposit a sum of Rs. 10,000/- each as liquidation expenses to the Common Pool Fund of the Official Liquidator within one week from today. The Official Liquidator is permitted to close the books of account of the company. A copy of this order shall be communicated to the Registrar of Companies within 30 days by the Official Liquidator. The present application and the Company Petition No. 354/2005 are disposed off and the Official Liquidator is discharged. The files and records of the company be consigned to record room.

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