Delhi High Court
Tomkins Consulting Services ... vs -- on 12 February, 2016
Author: Rajiv Shakdher
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 113/2016
IN THE MATTER OF
TOMKINS CONSULTING SERVICES INDIA PRIVATE
LIMITED(IN VOL.LIQN.) ..... Petitioner
Through: None
Mr. Ashish Makhija and Ms. Isha Jha, Advocates
the official liquidator.
versus
....
..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 12.02.2016
1. This is a petition filed under Section 497 (6) of the Companies Act,
1956 (in short the Act). The captioned petition has been moved by the
Official Liquidator (OL) attached to this court. The company in issue i.e.
Tomkins Consulting Services India Pvt. Ltd. (hereafter, referred to as the
company).
2. The said company had moved for voluntary liquidation. The said
company was incorporated on 29.05.2008. However, on 30.01.2013, the
Board of Directors (BOD) of the company in their meeting of even date,
approved the declaration of solvency by majority of directors made in the
prescribed Form (i.e. Form 149) as required under Rule 313 of the
Companies (Court) Rules, 1959 (in short 1959 Rules). As is the practice,
the Form was accompanied by audited accounts, statement of companies of
assets and liabilities. The said statement was prepared to reflect the position
as it obtained as on 30.11.2012. The auditors report also accompanied the
said Form.
3. Accordingly on 30.01.2013, notice was issued to the shareholders of
the company for convening an Extraordinary General Meeting (EGM). The
EGM was convened on 11.02.2013 when a resolution was passed to wind up
the company under Section 484(1)(b) of the Act.
4. Accordingly, notification was published in the Statesman (English)
and Rashtriya Sahara (Hindi) as well as the official gazette. Notifications in
the two newspapers were published on 16.02.2013 whereas the notification
in the official gazette was published in the week spanning 09.03.2013 and
16.03.2013.
5. Suitable intimation was given to the Registrar of Companies (ROC)
on 19.02.2013 with regard to the appointment of a voluntary liquidator as
required under Section 516 of the Act and Rule 315. Information was given
in the prescribed Form (i.e. Form 152) of the 1959 Rules.
5.1 Furthermore, on the even date i.e. 19.02.2013, notice was also given
to the concerned Registrar of Companies (ROC) qua appointment of the
voluntary liquidator as required under Section 493 of the Act.
5.2 On the very same date, Form no.23 was filed with the ROC,
registering the special resolution passed by the EGM of the shareholders in
terms of Section 192 of the Act.
5.3 Furthermore, notice was also given to the Income Tax Authorities in
consonance with the provisions of Section 178 of the Income Tax Act, 1961.
This notice was issued by the company on 20.02.2013. On 23.02.2013,
notice qua appointment of the voluntary liquidator was published in the
Business Standard (English and Hindi) whereas similar notices qua
appointment of the voluntary liquidator were published in the official
gazette spanning between 16.03.2013 to 23.02.2013.
5.4 The Income Tax Authorities issued a no objection certificate on
30.12.2013. The voluntary liquidator filed a statement of assets and
liabilities on 03.01.2014. Accordingly, the voluntary liquidator proceeded
to close the winding up on 04.01.2014. Pursuant thereto, notices under
Section 497 (2)(a) and (b) of the Act read with Rule 329 were issued to
convene an official meeting of the shareholders. These notices were issued
in the prescribed Form i.e. Form 155 of the Rules. The meeting as per the
notice was to be convened on 28.03.2014. Accordingly, notices were issued
in this behalf in two newspapers i.e. Statesman and Rashtriya Sahara. The
said notices were published on 21.01.2014.
5.5 Notices qua the aforesaid shareholder's meeting were also published
in the Official Gazette. The said notice was published in the week spanning
between 15.02.2014 to 21.02.2014.
5.6 As indicated in the aforementioned notices, the final general meeting
of the shareholders was held on 28.03.2014 wherein a special resolution was
passed, closing the winding up proceedings and for disbursal of records of
the company.
5.7 In pursuance of the resolution passed by the shareholders on
28.03.2014, a final return was filed with the ROC on 29.03.2014 showing
that winding up has been conducted and property has been disposed of for
the period 11.02.2013 to 04.01.2014 as required under Section 497 (3) of the
Act.
5.8 Consequent thereto, on 03.04.2014, a return of final winding up was
submitted with the O.L. office in Form 156 and157 read with Section 497(3)
of the Act. This return was filed by the voluntary liquidator.
5.9 It is averred in the petition that voluntary liquidator has also furnished
an indemnity bond and affidavit of even date i.e. 16.05.2014. No objection
certificate has been issued by the ROC, which is dated 13.06.2014. By this
certificate, the ROC has indicated that it has no objection to the dissolution
of the company. It is, in this background, that the captioned petition has
been moved.
6. Mr. Makhija, the learned counsel for the O.L., says that while there
was delay in publishing the notices for convening the EGM, the delay is not
substantial and therefore, that deficiency being minor in nature, could be
overlooked.
6.1 Furthermore, Mr. Makhija has drawn my attention to the statement
filed by the voluntary liquidator showing as to how winding up was
conducted and the property of the company was disposed of. This statement
has been filed in the prescribed Form (i.e. Form 62). The said statement
filed by the voluntary liquidator spans the period between 11.02.2013 and
04.01.2014.
6.2 As indicated above, the winding up of the company commenced on
11.02.2013 while it was closed by the voluntary liquidator on 04.01.2014. A
perusal of the statement shows that the assets have been realized and monies
realized thereto have been disbursed against the various liabilities owed by
the company including payments which had to be made towards dividend
and in respect of contributories i.e. equity shareholders. The statement
shows that the total sum realized by the company against its assets which
includes cash at bank and cash at hand as also loans and advances is a sum
of Rs.25,34,691/-. The statement shows that the said amount, as indicated
above, disbursed towards payment of various liabilities which includes the
voluntary liquidator's remuneration and legal charges. The legal charges to
the extent of Rs.2,85,413/- have been paid. The voluntary liquidator has
been paid a remuneration of Rs.45,000/-. Creditors, both preferential and
unsecured have also been paid monies. The preferential shareholders have
been paid a sum of Rs.73,795/- while the unsecured creditors have been paid
a sum of Rs.6,97,702/-. The equity shareholders have been paid at the rate
of Rs.17.91 per share amounting to Rs.14,32,781/-.
7. Having regard to the aforesaid, I am inclined to accept the prayer
made in the present petition. Accordingly, prayer (ii) is allowed. The
aforesaid company shall stand dissolved from the date of filing of the
petition. The petition is disposed of, in the aforesaid terms.
8. The necessary intimation will issue to the ROC within thirty days
from today.
RAJIV SHAKDHER, J
FEBRUARY 12, 2016
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