Suresh Kumar Kaushal vs Indian Capshells and Pharmaceuticals (P) Ltd.

Dev Darshan Sud, J.—The Petitioner has preferred this petition u/s 433(b) and (c) of the Companies Act, 1956, (hereinafter referred to as the ''Act''), praying for winding up of the Company M/s. Indian Capshells & Pharmaceuticals (P) Limited.

The allegations made in the petition are that the Respondent-Company was served with the notice under Sections 433, 434 of the Companies Act (Annexure P-3) in which amongst other provisions, it was alleged that the Company had defaulted in filing its statutory report with the Registrar of Companies and was not holding its statutory meetings. The Company had stopped doing any business for the last more than three years. The notice was dated 2.12.2004. Nobody appeared on behalf of the Respondents. However, one application under Order 1 Rule 10 of the CPC being Company Application No. 8 of 2007 was preferred by one Anil Grover son of Shri L.N. Grover, Resident of House No. 1723, Sector 43-B, Chandigarh with a prayer to implead him as Respondent No. 3. This application was dismissed on 30.7.2007 in the following terms:

Coy. Application 8/2007.

This application has been moved by Shri Anil Grover son of Shri L.N. Grover resident of House No. 1723, Sector 43-B, Chandigarh with a prayer that he be impleaded as Respondent No. 3 in the petition. It is submitted that he is neither the Chairman nor the Managing Director of the Respondent Company. Reply has been filed by the applicant in which it is submitted that Shri L.N. Grover is, in fact the Managing Director of the Company. In support of this contention learned Counsel for the Petitioner has drawn my attention to the Civil Suit filed in the Court of learned Civil Judge, (Sr. Division), Chandigarh where Shri L.N. Grover has been described as Chairman-cum-Managing Director of the Respondent Company.

I have heard learned Counsel for the parties. In the facts and circumstances of the case, this application is dismissed. It is clarified that the dismissal of this application shall not in any manner affect any other rights of the applicant which he may have against the Company. The application is disposed of.

Co. Pet No. 15/2006.

List next week.

Pursuant to the orders passed by this Court, the report of the Official Liquidator was called for. On 23.10.2009, this Court passed a detailed order in the following terms:

Pursuant to the orders passed by this Court on October 19, 2009 an affidavit has been filed by Assistant General Manager of Himachal Pradesh Financial Corporation.

The affidavit states that the assets of M/S Indian Capshells & Pharmaceuticals (P) Ltd., have been taken over by the Financial Corporation, exercising its powers u/s 29 of State Financial Corporations Act, 1951. All property including fixed assets were taken over by the Financial Corporation on 29.7.1991 and sold on 10.11.1993 for Rs.13.75 lacs in part satisfaction of the debt due from the company. Suit for recovery which was instituted against the Company in this Court was later on transferred to the Debts Recovery Tribunal Jaipur in 1995 which issued recovery certificate on 25.2.1999 in favour of the Financial Corporation entitling it to recover a sum of Rs. 95,12,934.00 with costs of the suit and future interest at the rate of 15% per annum from 26.12.1994 till the realization of the entire amount.

Execution proceedings were later on instituted before the Debts Recovery Tribunal, Chandigarh in July, 2002 seeking recovery of Rs. 2,02,17,889.07 as on 31.5.2002 alongwith interest etc. Till date, the Financial Corporation has been unable to recover any amount. The Financial Corporation claims a sum of Rs. 3,05,45,262 as still recoverable from the Company as on 30.9.2009.

Mr. Sanjeev Kuthiala, learned Counsel appearing for the Official Liquidator states that since the assets of the Company have been taken over by the Financial Corporation, there are no assets left which can be taken into possession and disposed of in order to satisfy the debt of the Company.

Mr. Sandeep Sharma, Learned Asstt. Solicitor General of India appeared for the Registrar of Companies has submitted that according to the instructions received by him from the Registrar of companies and as recorded in the order of this Court on 26.9.2008 the Company has been declared as defunct and struck off from the Roll of the Register Companies u/s 56 of the Companies Act, 1956.

On 26.9.2008 this Court had directed publication of notices declaring that the Company is being wound up and opposition, if any, be filed in this Court. The notices were duly published in Times of India and Divya Himcahal on 24.10.2008 and official gazette on 22.11.2008. No opposition has been filed by the Creditors, Workers of the Company or any other person interested in the affairs of the company. The Financial Corporation now seems to be the only major Creditor which claims an amount of more than three crores from the Company. No opposition to the winding up has been filed by it. Learned Counsel appearing for the applicant, placed reliance of the judgment of Calcutta High Court in Re Siddhartha Apparels P. Ltd. In re Biren Roy Trust 1986(59) Comp Cas 435 in support of his contention that if the Company is unable to pay its rents etc. the landlord has the locus standi to file a petition for winding up. Nobody has appeared on behalf of the Company to oppose the petition. In these circumstances this petition is allowed. Direction is issued that M/S Indian Capshells and Pharmaceuticals (P) Ltd. be wound up u/s 433(b) and (c) of the Companies Act, 1956 for failure to comply with the provisions of the Act. A further direction is issued to the Official Liquidator to ensure that this order is carried out and punctually obeyed. The Official Liquidator shall file his report within a period of four weeks from today.

The petition stands disposed of with no order as to costs.

The case was thereafter listed on 8.12.2009 and the report of the Official Liquidator was called for. In reply, the Official Liquidator states that all properties of the Company were taken over by the Himachal Pradesh Financial Corporation on 29.7.1991 by exercising powers u/s 29 of the State Financial Corporation Act, 1951 and have been sold by the Corporation on 10.11.1993. He further states that the Company has been declared as defunct and its name has been struck off from the roll of the Registrar of Companies u/s 560 of the Companies Act, 1956. In addition, the Official Liquidator has requested the Registrar of Companies, Punjab, Himachal Pradesh and Chandigarh, calling for the record of the Company so that necessary statutory compliance of the Act can be carried out. The affidavit dated 17th December, 2009 has been taken on the record of the case.

From the pleadings on record it seems that the Company is not possessed of any assets which can vest with the Official Liquidator. However, in terms of the affidavit as filed by him, let further necessary action be taken in accordance with law. Further reports of necessary compliance be filed in this Court as undertaken by the Official Liquidator.

This petition is accordingly disposed of. There shall be no order as to costs. Let a copy of this order be given to Official Liquidator for compliance.