The Ol Of M/S Square Deal ... vs Na
2022 Latest Caselaw 209 Guj

      C/OLR/150/2021                                    ORDER DATED: 06/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/OFFICIAL LIQUDATOR REPORT NO. 150 of 2021
                                 In
                  R/COMPANY PETITION NO. 245 of 2000

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     THE OL OF M/S SQUARE DEAL ENGINEERING PVT. LTD. (IN LIQN)
                             Versus
                               NA
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Appearance:
MR PATHIK M ACHARYA(3520) for the Applicant(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 06/01/2022

                                ORAL ORDER

Heard learned advocate Mr.Pathik M. Acharya for the applicant.

1. By this report under section 481 of the Companies Act, 1956, the official Liquidator has prayed for dissolution of the company, named, M/s. Square Deal Engineering Pvt. Ltd., (In Liquidation), which was ordered to be wound up vide order dated 24.08.2004 passed in Company Petition no. 245 of 2000.

2. The report indicate that consequent upon winding up order passed by this Court, the Official Liquidator deputed his Official at the Office of Registrar of Companies, Gujarat,

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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 Directors, as on the date of winding-up order, wherein it was revealed that the authorized share capital of the Company in liquidation was Rs.2,00,000/- and paid up share capital was Rs.1,00,000/- and its registered office was situated at 77, Haribhakti Colony Extension, J. P. Road, Vadodara and also factory premises at 24/25A, GIDC, Vaghodia, Dist.Baroda and Mr. Vipul V Vora, Mrs. Nirmalaben P. Vora, Ashaben A. Vora, Dhirendra R. Shah and Avantiben V. Vora were Ex-Directors of the company and also reveal that Bank of Baroda, Old Padra Road Branch at Vadodara was secured creditor of the company under liquidation.

3. The Official Liquidator, on being appointed and in compliance of winding up order after issuing letters to Secured Creditor, Ex- directors, Petitioning Creditors and all other concerned, the Official Liquidator deputed his officials to take over possession of Company's Registered Office as well as Factory Premises on 12.01.2005. The Official of the Official Liquidator could not take possession of company's

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registered office situated at 77, Haribhakti Colony Extension, J. P. Road, Vadodara since at time of possession, the owner of the said premises as well as ex-directors provided supporting documents to prove that said premises didn't belong to company in liquidation.

4. It is also mentioned in the report that thereafter, the Official of the Official Liquidator had taken possession of company's factory premises situated at 24/25A, GIDC, Vaghodia, Dist. Baroda, in presence of authorized representative of Bank of Baroda and Ex-Director of the company in liquidation and after taking possession, the Official Liquidator filed compliance report being OLR No.31 of 2005 wherein praying various direction including constitution of sale committee for sale of assets and properties of the company in liquidation. This Court vide order dated 04.11.2006 passed in OLR No.31 of 2005 constituted sale committee for sale of assets and properties of the company in liquidation and also permitted the Official Liquidator to appoint Panel Valuer to carry out Valuation of factory premises of the company in liquidation.

5. It is also indicated that due to non filing of statement of affairs under section 454 of the

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Companies Act, 1956, the Official Liquidator filed Criminal Case being O. J. Criminal Case No. 01 of 2005 against Ex-Directors of the company in liquidation under Section 454 (5) of the Companies Act, 1956, which was disposed of on 08.02.2007 by imposing penalty of 45,000/- on ex- directors of the company in liquidation.

6. Thereafter pursuant to the auction of the factory premises of the company under liquidation, the Official Liquidator filed sale report being OLR No. 138 of 2007 for confirmation of sale of assets and properties of the company in liquidation for sale consideration of 18.00 Lakhs.

7. Subsequently, Bank of Baroda, Sole Secured Creditor of the company in liquidation filed COMA No.443 of 2009 inter-alia seeking direction against the Official Liquidator to disburse Sale Proceeds to them. In the said report, this Court on the basis of report dated 13.01.2010 filed by the Official Liquidator orally directed the Official Liquidator to invite claim from Secured Creditors and workmen of the Company in liquidation under Section 529, 529A & 530 of the Companies Act, 1956 by publishing Advertisement in "DNA" in English and in "Divya Bhaskar" in Gujarati, both in Vadodara Edition.

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8. In compliance of the said direction, the Official Liquidator published Advertisement in "DNA" in English and in "Divya Bhaskar" in Gujarati both in Vadodara Edition on 13.02.2010. This Court vide order dated 17.02.2010 passed in COMA No.443 of 2009, directed the Official Liquidator to disburse ad-hoc amount of 8.00 Lakhs to the Bank of Baroda subject to the usual undertaking. Pursuant to the said order, vide letter dated 23.02.2010 Official Liquidator disbursed an amount of 8.00 Lakhs to the Bank of Baroda.

9. Record indicates that Bank of Baroda filed Company Application being COMA No.101 of 2010 to direct the Official Liquidator to disburse the remaining fund laying in the account of the company in liquidation with the Office of the Official Liquidator. In the said application, the Official Liquidator filed report dated 10th May, 2010 wherein it was mentioned that pursuant to the Advertisement of Claim dated 13.02.2010, the Office of the Official Liquidator did not receive any claim from any creditor of the company in liquidation and permission was sought by the Official Liquidator to disburse remaining Sale Proceeds to Bank of Baroda.

10. This Court vide order dated 10.05.2010,

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permitted the Official Liquidator to disburse an amount of Rs.9,36,000/- available in the account of the company in liquidation to Bank of Baroda, secured creditor of the company in liquidation. In compliance of the said order, the Official Liquidator disbursed the amount of Rs.9,36,000/- to Bank of Baroda.

11. The Official Liqudator has also stated that as per the balance certificate issued by the Chartered Accountant P.C.Rathod & Co. on 22.09.2020 funds available in the Company's Bank Account is as under :

 Cash(')                       Bank(')                           FDR(')
 Nil                           95,888/-                          Nil

It is further stated in the report that there is no asset and no claim is pending with the Official Liquidator for the Company in liquidation.

12. The Official Liquidator, relying upon the provisions of Section 481 of the Act, has contended that it is not possible to proceed with the winding up for want of fund and assets. Relying upon the judgment of the Hon'ble Apex Court in the case of Meghal Homes Pvt. Ltd. Vs.

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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.

13. It is also stated by the Official Liquidator that prior to dissolution of the company, the Official Liquidator vide letter dated 29.07.2019 addressed to the Registrar of Companies, Gujarat, Income-Tax Department, Secured Creditors and Ex- directors of the company informed that the Official Liquidator proposes to dissolve the said company and if they are having any objection. However, no response is received from Income tax department, Secure Creditor and Exdirectors of the company under liquidation and ROC vide its letter dated 01.08.2019 informed that they are having no objection if the company is dissolved by the High Court of Gujarat.

14. The Official Liquidator has also further averred 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.

15. It is therefore, contended that in these circumstances, it is not possible for the

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Official Liquidator to further carry out the proceedings of winding up. The Official Liquidator has also contended that even after the order of dissolution that may be passed by this Court as provided under Section 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.

16. The Official Liquidator, relying upon the auditor's certificate dated 22.09.2020, has contended that Bank Balance of Rs.95,888/- is available in the Bank Account of the Company in liquidation. Moreover, no asset of the Company in liquidation is available. In light of the aforesaid, it is prayed that the report may be accepted and appropriate order of dissolution of the Company in liquidation may be passed.

17. Having heard the learned advocate for the Official Liquidator and on perusal of the record of this report and in the facts of the case and considering the ratio laid down by the Hon'ble Apex Court in the case of Meghal Homes Pvt. Ltd. (supra), the report deserves to be accepted. The Company, named, M/s. Square Deal Engineering Pvt. Ltd., (In Liquidation) is hereby dissolved under Section 481 of the Act and the Official Liquidator attached to this Court stands

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discharged and is relieved as liquidator of M/s. Square Deal Engineering Pvt. Ltd., (in Liquidation). The official liquidator is also permitted to make the payment of Rs. 1500/- to M/ s. P.C. Rathod & Co., Chartered Accountants towards preparation of Auditor's Certificate from the Account of the company in liquidation maintained by the Office of the Official Liquidator and thereafter also permitted to transfer the balance amount from the account of the company under liquidation to the Common Pool Account maintained by the Office of the Official Liquidator.

18. In case of any difficulty, affected party, if aggrieved with the present order, may apply for reviewing the same under per the provisions of Section 559 of the Companies Act, 1956.

Accordingly, the report is allowed in the aforesaid terms.

(BHARGAV D. KARIA, J) PALAK