Benzion Traders and Agencies pvt ltd vs Achanak Associates Realtors Pvt ltd

Shyam Babu Gautam, Member (Technical)

This is a Company Petition filed under Section 271(a) and other applicable provisions of the Companies Act, 2013 for winding up of the Petitioner Company in pursuance of the special resolution dated 23.12.2019, passed by the members of the Petitioner Company through its Director Mr. Suresh Kurkute.

Heard, Ld. Counsel for the Petitioner Company (Benzoin Trades and Agencies Pvt. Ltd.).

Learned Counsel for the Petitioner submits that Petitioner Company was in the business of the trading edible Oil and other Agro products. The Petitioner Company has not performing well for several years due to adverse market condition and the fact that the market leader in the edible oil industries was undergoing Insolvency process under the IBC Code, 2016 and could not supply any goods to the Petitioner Company. Due to this the Petitioner Company has incurred severe losses and has also not carried on any business for several years. The liabilities of the Petitioner Company have a negative net worth of Rs.162.83 Crore.

Further it is brought to attention of this Tribunal that the business of the Petitioner Company cannot be revive and in the given financial position, the company cannot carry on any other business profitably.

In view of the above facts, it was submitted that it was just and equitable that the Petitioner company be wound up and accordingly, the members of the Petitioner Company passed the special resolution dated 23.12.2019 to wind up the Petitioner Company.

The Ld. Counsel for the Petitioner Company thus, prays that

(a) The Petitioner Company should be wound up the direction of the Hon'ble tribunal as per the provisions of the Companies Act, 2013 and

(b) The Liquidator from the panel maintained by the Central Government as per Section 275(2) of the Companies Act be appointed as the Company Liquidator.

The Learned Company for the Petitioner Company also referred to the report of the Registrar of Company (RoC) wherein the RoC has noted that the Petitioner Company has current assets of Rs.1,98,50,56,054/- and non-current assets of Rs.7,23,43,000/- as against trade payables of Rs. 3,68,29,16,894/- and other current liabilities of Rs. 27,51,238/-. Further the RoC also noted that for the year ended 31.03.2018 revenue from operations of Rs. 41,84,35,498/- and losses of Rs. 32,19,10,788/- based on the same the RoC made the following observations: -

(1) Notice may be given to Income Tax Department/other appropriate authority for any outstanding dues/objection before dissolution of the Company.

(2) The Liquidator may be appointed for the Company, if the Tribunal deems fit under Section 275(1) of the Companies Act, 2013 to take all necessary steps.

(3) The Liquidator may be directed to file the order of dissolution in INC28 with RoC, Mumbai for updation of records of the Company in master data.

In View of above observations of RoC, Learned Counsel of the Petitioner Company submits as under: -

(a) The Petitioner Company undertakes to serve notice to the Income Tax Department within a period of thirty days of appointment of the Liquidator, as required under Section 178 of the Income Tax Act, 1961. The Ld. Counsel for the Petitioner Company also submits that there are no outstanding dues to any other authority. The Ld. Counsel however confirm and undertake that if any dues are found to be outstanding, notice will be given to such authority.

(b) This Tribunal may appoint the Liquidator as it deems fit u/s 275(1) of the Companies Act, 2013 to take all necessary steps.

(c) The Liquidator may be directed to file an order of resolution in INC28 with RoC, Mumbai for up-dation of the records of the Company in master data.

Perused the Company Petition, along with Additional Affidavit dated 03.09.2021 of Mr. Suresh Kurkute authorized representative and director of the Petitioner Company along with the Statement of Affairs filed by the Petitioner company and the report filed by the RoC.

Based on the facts stated in the Company Petition and as it is evident from the Statement of Affairs filed by the Petitioner Company vis-à-vis the observation of the RoC, the Company is not carrying on any business and has not carried out any business for many years. Thus, under the circumstances; this Bench considered to wind up the Company with immediate effect.

Accordingly, it is hereby order as follows: -

(a) The Petition of the Petitioner Company for winding up is admitted.

(b) This Bench hereby appoints Mr. Prakash Shenoy having email Id shenoyprakash@gmail.com and having IBBI Reg. No. IBBI/IPA-002/IP-N00946/2019-2020/13010 as a liquidator. To carry out the function as mention u/s 275(3) of the Companies Act, 2013 r/w Companies (winding up) rules, 2020 and orders of the said liquidator to forthwith take charge of the property and effects of the Petitioner Company.

(c) This Bench hereby directs the Liquidator to file a declaration as required u/s 275(6) of the Companies Act, 2013 within seven day of his appointment.

(d) Within fourteen day of the date of this order, the Petitioner Company to publish notice of the winding up order. Having being passed in the English newspaper "Business Standard" and in vernacular language "Navshakti" in Marathi newspaper.

(e) This Bench hereby directs the directors and other officer of the Petitioner Company to comply with Section 274(3) and submit the report within a period of thirty days of this order. The books of account of the Petitioner company shall also be complied and audited up to the date of order of the liquidator appointed under this order.

(f) This Bench hereby directs the Registrar under Section 277(1) of the companies Act, 2013 r/w companies (winding up) Rule, 2020 to send intimation to the liquidator within seven days from the date of passing of the order by Register Post or Speed Post or by Courier Service or by electronic means along with a copy to the RoC, Mumbai.

(g) The Bench further directs the Liquidator to submit the report in terms of Section 281 of the companies Act, 2013 within 60 days from this order.

(h) The Bench also directs no suits or other legal proceedings shall be commenced or extend on the date of the winding up order, shall be proceeded with, by or against the Petitioner company, except with leave of this Tribunal and subject to such terms as the Tribunal may imposed.7. Ordered Accordingly.