Impetus Marktrade India Private Limited Vs

Prabhat Kumar, Member (Technical)

The present Company Petition has been filed by the Petitioner Company under the provisions of Section 271(a) read with Section 272(1)(a) of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 and the rules made thereunder in pursuance of the special resolution dated 8th September 2021 passed by the members of the Petitioner Company through its director Mr. Jaipal Singh.

Heard, Learned Counsel for the Petitioner Company (Impetus Marktrade Private Limited), and Ms. Surbhi Soni, Advocate i/b. MGV & Associates for Patanjali Foods Ltd. (Creditor).

Ld. Counsel for the Petitioner submits that Petitioner Company was in the business of the trading edible oil and other agricultural products. The Petitioner Company has not been 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 Petitioner Company have a negative net worth.

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 18th December, 2019 to wind up the Petitioner Company.

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

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

a. The Petitioner Company should be wound up as per the direction of the Hon’ble tribunal and 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 Counsel for the Petitioner Company also submitted that the copy of the Petition u/s 272(1)(a) has been filed with the Registrar of Companies. The Registrar of Companies has filed its report vide letter No. ROC/272(5)/NCLT/2021 dated 19.02.2021 wherein the Registrar has recommended appointment of Liquidator in case this Tribunal deems fit to do so and has also stated that notice may be given to the Income Tax Department and/or appropriate authorities for any outstanding dues/objection before dissolution of the Company by the liquidator. The ROC has noted that the Petitioner Company has Current Assets of Rs.5,31,04,93,325/-, Non-Current assets of Rs.9,120/-, trade payables of Rs.6,86,14,63,495/-, Other Current liabilities of Rs.55,000/- as per Balance Sheet as at 31.03.2018. As per the Profit & Loss account for the year ended 31.03.2018 further, the company had Revenue from operations of Rs.39,92,81,129/- and losses of Rs. 57,86,16,661/-.

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 Learned Counsel for the Petitioner Company also submits that there are no outstanding dues to any other authority. The Learned Counsel however confirms and undertakes 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 dissolution in INC28 with ROC, Mumbai for up-dation of the records of the Company in master data.

We have perused the Company Petition, 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 it a fit case to wind up the affairs of the Company with immediate effect.

Accordingly, it is hereby order as follows: -

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

b) Accordingly, this Bench hereby appoints Mr. Dhiren S. Shah, having email Id dss@dsshah.in and IBBI Reg. IBBI/IPA-001/IP-P00220/2017- 2018/10419 and contact no.: 9820073090 as a Liquidator, to carry out the function as mentioned 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. The liquidator shall be entitled to remuneration as provided under Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016.

c) The Petitioner Company is directed to pay the cost of Rs.1,00,000/-to the provisional liquidator towards the expenses of the winding up procedure, which shall be subject to adjustment against liquidation cost and remuneration.

This Bench hereby directs:

(i) The Liquidator to file a declaration as required u/s 275(6) of the Companies Act, 2013 within seven days of his appointment;

(ii) The Petitioner Company to publish notice of the winding up order, having been passed in the English newspaper “Business Standard” and in vernacular language “Navshakti” in Marathi newspaper within fourteen days of the date of this order;

(iii) 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 compiled and audited up to the date of order of the liquidator appointed under this order;

(iv) The Registrar under Section 277(1) of the companies Act, 2013 r/w companies (Winding up) Rules, 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;

(v) The Liquidator to submit the report in terms of Section 281 of the Companies Act, 2013 within 60 days from this order; and

(vi) 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.