Rahmat Khan vs Hanuman Das and Sons

Ajay Rastogi, J.—Instant company petition has been filed under sections 433, 434 and 439 of Companies Act, 1956 ("Co. Act") seeking winding up of M/s. Hanuman Das & Sons (P.) Ltd. ("respondent-Co.") duly incorporated on 6-12-1948 having registered office at C-29, Bhagwan Das Marg, Jaipur.

Petitioner-1 (Rahmat Khan) claims himself to be creditor as well as contributory/ share holder while petitioners-2 to 4 (Ibrahim Ali, Smt. Choti & Yaqub Ali, claim themselves as contributories of respondent-Co. Petitioners are holding respectively 150, 200, 200 & 50 shares of respondent-Co. and out of total 2000 shares, they hold 600 shares of the value of Rs. 60,000.

It has averred in the petition that on 20-11-1982, respondent-Company & its assets were taken over by petitioner-1 (Rahmat Khan) and Hakim Ali by acquiring its share-holding, and for running business of establishing a Deluxe Hotel in the sole property owned by respondent-Company. However, after taking over the Company by new groups, differences arose between the parties thereby no business could be transacted by respondent-Company nor was there any income being earned by Company since the year 1982 and since then no further capital was ever inducted by Directors or share holders of respondent-Company for business purposes.

However, respondent-Co. approached the petitioner-1 for borrowing a certain sum which was arranged from time to time and as a result whereof, after the year 1993, the liabilities against respondent-Company kept on rising since statutory dues like income tax returns, municipal taxes, land & building tax were not being paid by respondent-Co., and no party was interested in clearing liabilities nor any party took initiative to settle statutory dues outstanding against it. Respondent-Co. failed to satisfy statutory outstanding dues including amount of loan extended by petitioner-1 and that after the year 1991, respondent-Co., failed to file its annual returns & balance sheets with the Registrar of Companies and last balance sheet prepared by respondent-Co., was of the year 1990-91 filed with Registrar of Cos.

It has further been averred that due to complete deadlock in respondent-Co., and the fact that respondent-Co. was not transacting any business, on 16-7-1992, an Extraordinary General Meeting was called & held at its registered office and a Special resolution was passed for winding up of respondent-Company u/s 433 of Co. Act; and it was further resolved by the Board of Directors to take necessary steps moving application for the purpose, as is evident from minutes (Ann.4), which was also submitted before the Registrar of Companies vide document (Ann.5).

It has been averred that after the year 1992, all the Directors dissociated each other with h the affairs of respondent-Co., no steps were taken by any of Directors for winding up of respondent-Company pursuant to special resolution (supra) (Ann.4 & 5) and that apart, no meetings were ever called or held by Board of Directors after Extraordinary General Meeting being held on 16-7-1992.

It has been averred that respondent-Co. is lying closed since last more than 10 years and no business having been transacted, no profit being earned and that apart, respondent-Company failed to comply with statutory requirements by filing annual reports & balance sheets with the Registrar of Companies within a stipulated period of holding of Annual General Meeting. There was no annual general meeting being ever called/held since last several years and it has been prayed that it is just & equitable to wind up the Company.

Notices were issued by the Court vide order dated 13-7-2000 and at one stage, objection was raised by one of Directors whose appearance has been recorded in latter order sheets. However, after hearing objections, as well, vide order dated 11-5-2011, Company petition was admitted and the notices were duly published in national news papers (Hindustan Times) and local news paper (Dainik Bhaskar) and at the same time, notices were also issued to the Official Liquidator attached to the Company Court.

It is relevant to record that pursuant to order dated 25-7-2008, report was submitted by the OL in which it has been averred that respondent-Co. has failed to furnish balance sheets and exact position of the assets and liabilities of Company, in absence whereof cannot be ascertained though copy of profit & loss account for the year ending on 31-3-1991 has been enclosed and its authentic document for ascertaining the net worth of the Company with reference to a particular point of time could not be made available and it was prayed that before any further action being taken, the petitioners may be asked to submit statement of affairs.

However, it appears that later on, objectors did not turn up and after taking note of submissions made, at one stage, this Court vide order dated 10-2-2011 directed petitioners to submit statement of affairs of the Company, which as informed, has been submitted by petitioners on 4-7-2011, which has not been controverted by Counsel for OL.

Counsel further submits that no purpose is going to be served to continue the Company since the objects for which it was incorporated has substantially failed and it is impossible for the Company to carry out business of the Company in view of differences between the Directors and total lack of management who have lost their confidence in each others and the differences have reached to the extent that there is every possibility of more litigations cropping up between them.

Counsel for petitioners further submits that respondent-Company has taken its special resolution to get the Company wound up u/s 433(a) of Co. Act. No one has came forward raising objections and since statutory requirement has been fulfilled by the Company, it deserves to be wound up.

Having considered contentions made by Counsel for petitioners and taking note of material on record, this Court is of the opinion that no useful purpose would be served to continue respondent-Company and is in public interest to wind up the Company.

Consequently, company petition is allowed. M/s Hanuman Das & Son (P.) Ltd., is hereby ordered to be wound up and the Registrar of this Court, pursuant to Rule 111 of Companies (Court) Rules, 1959 is directed to draw winding up order in terms of Rule 52 of Companies (Court) Rules, 1959 and inform the same to Official Liquidator attached to the Court.

The petitioners are also directed to have the notice of winding up order, after getting the same settled from Registrar of this Court, in conformity with Companies (Court) Rules, by publication in Dainik Bhaskar (Hindi) Jaipur & Hindustan Times, (English), New Delhi and so also in Rajasthan Gazette and also serve upon M/s Hanuman Das & Sons (P.) Ltd. by sending the same by registered post.