Delhi High Court
Jaskiran Sran & Ors. vs M/S Cartel Attire Private Ltd on 28 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 18th August, 2017
Pronounced on: 28th August, 2017
+ CO.PET. No.63/2011 & CA Nos.755/2017, 1357/2017 and OLR
No.113/2017
JASKIRAN SRAN & ORS.
..... Petitioners
Through : None.
versus
M/S CARTEL ATTIRE PRIVATE LTD
..... Respondent
Through : Mr.D.Bhattacharya, Standing
Counsel for Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. This CA No.1357/2017 has been moved by the Official Liquidator
for final winding up in the matter.
2. Initially, a petition under section 439(1) (b) read with section
433(e) of the Companies Act, 1956 (hereinafter as 'the Act') was filed by
the petitioner for the claim of `3,24,372/- with interest @ 18% till the
date of realization against the M/S Cartel Attire Private Limited
(hereinafter as 'respondent company') and also seeking winding up order
against respondent.
3. The petitioner is engaged in the business of cloth fabrication and
the respondent is also in the same field. On the demand of the
respondent company, the petitioner has extended short term
loan/arrangement to the respondent to the tune of `12.00 Lacs to be
repaid within one year with interest @ 18% pa.
4. Respondent committed default in repayment of loan amount and
petitioner vide letter dated 01.11.2010 intimated to respondent that as on
31.03.2010 there was debit balance of `12,38,889/- and as on 31.10.2010
there was outstanding balance of `4,10,000/-. The respondent vide reply
dated 10.11.2010 admitted the liability and sought time to make the
payment. However, during further correspondence between the parties
the outstanding amount was agreed to be `3,24,372/- after giving up
penal interest. The petitioner also issued legal notice dated 14.12.2010
and delivered by it hand at the registered office of respondent and also
sent through courier. Despite this, neither amount was paid nor any reply
was received.
5. Vide order dated 10.05.2011, a provisional liquidator was
appointed by this Court and citations were directed to be published in
"Indian Express" (English) and "Jansatta" (Hindi) as well as Delhi
Gazette. The Citation had been published in "Indian Express" (English)
and "Jansatta" (Hindi) on 25.09.2011 as well as Delhi Gazette on
23.02.2012.
6. Subsequently, vide order dated 17.09.2014, the final winding up
order was passed and the Official Liquidator attached with this Court was
appointed as the Official Liquidator to wind up the Company. Necessary
citations and publications were made.
7. The officials of the Official Liquidator had visited the office of the
Registrar of Companies of Delhi and Haryana to inspect the records of
the companies in liquidation as maintained by the office of the ROC.
The two ex directors of the company as on the date of the winding up
order were Mr.Manoj Kumar Sabharwal and Ms.Rozy Sabharwal, his
wife. The registered office was situated at 68C, Rameshwar Nagar,
Azadpur Delhi- 110033.
8. The statutory notices to the Income Tax, Sales Tax, Registrar of
Companies, General Post Office and notices under Section 454, 456 of
the Companies Act, 1956 along with notices under Rule 130 of the
Companies (Court)Rules 1959 were issued to both the Ex-directors for
handing over the assets, records and books of accounts of the company
(in liquidation) and to file Statement of Affairs under section 454 of
Companies Act, 1956 with the office of the Official Liquidator. The ex-
directors were further called upon to visit the office for recording their
statements under Rule 130 of the Companies (Court) Rules 1959.
9. This Court vide order dated 03.09.2012 appointed Mr. Rajender
Prasad as valuer in the above said matter to evaluate the goods lying on
Ground floor, 68-C, Rameshwar Nagar, Azad Pur, New Delhi. He had
submitted his report and the goods were sold by this Court on 07.03.2013
and the possession of the said goods were handed over to the highest
bidder by the official liquidator on 22.04.2013.
10. The team of the officials of Official Liquidator visited the
registered office of the company situated at 63-C, Rameshwar Nagar,
Azad pur, New Delhi and peaceful possession of the said office was
taken over. The ex-directors of the company (in liquidation) submitted
the documents viz. Registered General Power of Attorney, Receipt,
Agreement of Sale with the office of the Official Liquidator which were
examined. Since the property wherein registered office was situated was
found to have been purchased in the year 1990 and the company (in
liquidation) having been incorporated in the year 2000, the possession of
registered office was released to the ex-directors. However, the records
lying at IInd floor of the premises were shifted to a room at the ground
floor. The room was properly sealed and the same was given in Superdari
to the ex-director.
11. In response to the notices issued Under Rule 130 of the Companies
(Court) Rules, 1959, the ex-directors visited on various dates and the
statement Under Rule 130 of the Companies (Court) Rules 1959 of Sh.
Manoj Kumar Sabharwal was recorded on 27.07.2011 while that of Smt.
Rosy Sabharwal was recorded on 07.03.2013.
12. The Statement of Affairs of the company was filed by Sh. Manoj
Kumar Sabharwal on 02.08.2011 and by Smt. Rosy Sabharwal on
21.08.2012. The Statements of Affairs were found to be defective and
defects were duly communicated to both the ex-directors.
13. In respect of incomplete record, an application being C.A.
No.2017/2012 under Section 468/477 of the Companies Act, 1956 was
filed by the Official Liquidator, which was dismissed vide order dated
24.02.2015 as infructuous.
14. Shri Manoj Kumar Sabharwal, ex-director of the company
pursuant to the order dated 19.05.2014 visited the office of official
Liquidator on 18.07.2014. He stated that all such records as required by
the Chartered Accountant were in Computer which was sold by the
Official Liquidator. In this regard, it is clarified that as per the records
maintained by this office prior to 18.07.2014, the ex-directors never
pointed out about the availability of records in the computer sold in open
auction. Therefore, the ex-directors deliberately and with motives
obvious made a frivolous attempt to avoid the obligations of submitting
the requisite record.
15. The Chartered Accountant vide letter dated 06.09.2014 furnished a
review/supplementary report and stated that Sh. Manoj Kumar
Sabharwal, ex-director answered the queries and relied on the Audited
statement of accounts. The points/issues raised in the report dated
24.02.2012 are stated to have been satisfied by the ex-directors.
16. The process of invitation of claims was deferred as there were no
funds in the company's account maintained by this office. However, one
of the claimants, Sh. Devender Kumar Tyagi submitted his Claim on
prescribed form no.66 on 30.03.2015. He claims to be the workman of
the company having an award dated 13.12.11 in his favour passed by the
court of Learned Presiding officer, Labour Court, Karkardooma, Delhi.
17. That in compliance of the court order dated 18.04.2017, this office
has released an amount of `19,556/-to Global Corporate Media,
Advertising Agency.
18. In compliance of order dated 18.04.2017, Official Liquidator has
shifted the records after preparation of inventory from 68-C, Rameshwar
Nagar, Azad Pur to South Block of Official Liquidator on 16.06.2017.
19. As per the accounts of the Company (in liquidation) maintained by
the Official, the fund position of the company as on 12.07.2017 is `(-)
71,485/-.
20. There are no assets of the company which could be realized.
Further, as aforesaid the fund position as aforestated is not such that any
claims could be invited or settled.
21. Hence, in view of the facts as stated and explained herein above
the official liquidator is of the view that no fruitful purpose would be
achieved by keeping the liquidation proceedings pending. Accordingly,
the Official Liquidator has preferred the present application u/s 481 of
the Companies Act, 1956 seeking Dissolution of the Company (in
liquidation) as neither any amount/assets need to be realized nor any
claim requires to be settled/disbursed.
22. In the circumstances, respondent company namely M/s Cartel
Attrie Private Limited is dissolved under Section 481 of the Companies
Act, 1956 and Official Liquidator is discharged as liquidator of company.
The Official Liquidator is also allowed to make payment of `18,320/- to
M/s Rai and Company, Chartered Accountant towards their professional
fees from common pool fund. The audit of the half yearly/annual
accounts of the company (in liquidation) to be filed with this Court is
also dispensed with as official liquidator is permitted to close the books
of account after setting off/adjusting losses of amount of Rs.(-) 90,165/-
from the common pool fund.
23. A copy of this order be filed by the Official Liquidator with the
Registrar of Companies within the statutory period, as provided for in the
Act.
24. The petition and pending applications as well as report is
accordingly disposed of.
25. The date 04.09.2017 already fixed in the matter stands cancelled.
YOGESH KHANNA, J
AUGUST 28, 2017
M
