Full Text
HIGH COURT OF DELHI
Date of Decision: 16.04.2025
HSH NORDBANK AG .....Petitioner
Through: None.
Through: Ms. Sangeeta Chandra, Standing Counsel for OL.
Mr. Piyush Beriwal, Mr. Nikhil Kumar Chaubey and Ms. Jyotsna Vyas, Advocates.
JUDGMENT
1. This is an Application filed by the Atomic Energy Regulatory Board seeking to recall an order dated 14.05.2024 for de-commissioning the Gamma machine.
2. Learned Counsel for the Official Liquidator submits that since the machine has already been de-commissioned, the Application has since become infructuous.
3. The Application stands disposed of. OLR 49/2023 & 107/2024
4. Learned Counsel for the Official Liquidator submits that no further orders are required in these Applications and that these Applications may be disposed of as infructuous.
5. The Applications are accordingly disposed of. CO.APPL. 259/2025
6. This is an Application filed on behalf of the Official Liquidator under Section 481 of the Companies Act, 1956 [hereinafter referred to as “Act”] seeking dissolution of the Company, Goodwill Hospital and Research Centre Ltd. [hereinafter referred to as “the Company”]. It is apposite to set out prayers in the Application which reads as follows: “a) Dissolve the Company (In Liqn.) under Section 481 of the Companies Act, 1956; b) Permit the Official Liquidator to close the books of account of the Company (In Liqn.) as maintained by the Official Liquidator; c) Permit the office of the Official Liquidator to transfer the surplus amount, if any, to the Common Pool Fund; d) Discharge the Official Liquidator from further proceedings; and/or”
7. A Petition under Sections 433, 434 and 439 of the Act was filed by the Petitioner against the Respondent seeking winding up of the Respondent Company for non-payment of dues of the Petitioner. This Court by an order dated 09.07.2018 appointed the Official Liquidator as the Provisional Liquidator in respect of the assets of the Company and directions were passed for the provisional liquidator to take possession of all assets, books of accounts and records of the Company.
8. The citation for provisional winding up of the Company was duly published in the “Statesman” (English) on 10.01.2019 and “Veer Arjun” (Hindi) on 22.01.2019 and in the “Delhi Gazette” on 04.04.2019. Subsequently, the Company was directed to be wound up by an order dated 14.05.2019 passed the Court.
9. It has been contended that the officers of the OL on 24.08.2018 visited the Registered Office of the Company situated at 690, First Floor, Sunlight Colony-II, Ashram, New Delhi-110014 and found the premises to be in possession of the landlord, Mr Gyan Singh. The OL was informed that no Company has been in operation at the premises for the last 40 years. Consequently, the premises were not sealed by the Officers of the OL.
10. As per the records available, the following persons were shown as the Ex- Directors of the Company:
(i) Mr. Rabinder Singh;
(ii) Mr. Saif Ali; and
(iii) Mr. Anthony Kewra.
11. Learned Counsel for the OL submits, that Office of the OL on 13.09.2018 issued a Notice under Sections 454 & 456 of the Act read with Rule 130 of the Companies (Court) Rules, 1959 to the Ex-Directors of the Company for recording of their Statement of Affairs pursuant to which, Mr. Saif Ali, Ex-Director filed his statement of affairs and provided a list of debtors of the Company.
12. Notices were issued to the debtors as provided in the list by the Ex- Directors for recovery of amounts. Learned Counsel for the OL submits that notices were issued in the year 2019, 2022 and 2024 to the Debtors of the Company for recovery of amounts due to the Company. 12.[1] It is submitted that despite notices being sent and efforts being made, the Office of the OL has been unable to recover the amounts due from the debtors from the amounts which were given as loans by the Company. It is contended that despite various communications being issued to each of these debtors, in view of the inadequate information provided by the Ex-Directors of the Company, limited recovery could be made by the Office of the OL. The status of the Debtors of the Company and Status of Loans and Advances made by the Company as set out in the Application is reproduced below:
1. ECHS Faridabad, (Govt.) 3,40,838/- Reply to notice received on 08.01.2019 stating that as per records, there is no offline/manual bills found pending.
2. ECHS-NOIDA (Govt.) 6,29,364/- Reply to notice received on 24.04.2019 and relevant documents sought.
3. ECHS-UTI (Govt.) 4,26,756/- Reply to notice received on 23.01.2019, stating that Goodwill Hospital and Research Centre Ltd. was empanelled with ECHS from 16.12.2011 to 15.12.2013 and there are no bills pertaining to this hospital pending.
4. ESI Basai Darapur (Govt.) 1,27,486/- No reply received pursuant to notice dated 22.11.2023. Again, notice issued on 30.07.2024 by hand. As per submitted report by the Process Server, he met CMO who stated that this matter is not pertaining to Department.
5. ESI – Jhilmil (Govt.) 1,23,473/- Reply to notice received on 30.04.2019 stating that as per available records of this Hospital, no payment is due to be paid and as per online ERP record, the last payment of Rs.44,672/- has been made to the said Hospital in May, 2014. It was also requested to forward details of bills and receiving which was given by Ex-Director as a proof in their SOA as outstanding of the bills.
6. ESI – Noida (Govt.) 3,15,81,357/- No reply received pursuant to notice dated 22.11.2023. Notice issued again on 30.07.2024 received back with postal remarks “Refused”.
7. ESI – Okhla (Govt) 1,30,316/- Reply received on 04.06.2019 stating that there is no amount/payment pending as per records.
8. Bharat Sanchar Nigam Ltd. (Govt.) 6,78,652/- Notice dated 22.11.23 undelivered – received back with postal remarks “Insufficient Address”. Notice issued again on 30.07.2024 again undelivered “Incomplete Address”.
9. CGHS – UTI (Govt.) 2,79,854/- Notice dated 22.11.23 undelivered – received back with postal remarks “not found in Sector-12”. Notice issued again on 30.07.2024 by hand. No reply has been received.
10. Delhi Police (Govt.) 1,11,076/- Notice dated 22.11.23 undelivered – “Incomplete address, without Branch & Room No.” Notice issued again on 30.07.2024. No reply has been received.
11. MCD (Govt) 48,536/- Notice dated 22.11.23 undelivered, - "Incomplete address". Notice issued again on 30.07.2024 by hand. No reply has been received. Reply received on 16.08.2024 and relevant documents sought.
12.
CGHS-OPD-UTI 34,343/- No reply received to notice issued. Notice issued again on 30.07.2024 by hand. No reply has been received.
13.
ECHS-OPD- FARIDABAD KV 9402/- Reply to notice received on 08.01.2019 stating that as per records, there is no offline/manual bills found pending.
14.
15.
ECHS-OPD-UTI 33,865/- Reply to notice received on 23.01.2019, stating that Goodwill Hospital and Research Centre Ltd. was empanelled with ECHS from 16.12.2011 to 15.12.2013 and there are no bills pertaining to his hospital pending.
16. ESI-OPD, ESIC 80,139/- Notice issued again on 30.07.2024 and undelivered – received back with postal remarks “Refused”. Total 3,42,40,987/-
1. Alfa Elevators Company, 45,000/- In response to notice sent, D.D. for Rs.82,125/received on 02.06.2020.
2. Ojjus Fidility Healthcare P. Ltd. 17,68,90,061/- Letter issued and the said Company is under liquidation.
3. AIIMS 750/- No reply has been received pursuant to notice dated 22.11.2023. Again, notice issued on 30.07.2024 by hand. No reply has been received.
4. CGHS 2,00,000/- Reply to notice received on 11.08.2020 and requested to provide the basis on which this payment has been requested for, as CGHS doesn’t have any pending payments/ advances to be made to the Company as per their records.
5. Paschimanchal Vidyut Vitran Nigam Ltd. 17,05,747/- Notice undelivered – received back with postal remarks “Insufficient address” Notice issued again on 30.07.2024 also received back undelivered with postal remarks “No such person”.
6. Noida Sports Trust, Administrative Complex 5,000/- Notice undelivered – received back with postal remarks “Incomplete address” Notice issued again on 30.07.2024 also received back undelivered with postal remarks “Refused”.
7. EQAS (Vellor) 2500/- Reply to notice received on 11.03.2020 stating that no payment is pending as per their record.
8. Uttar Pradesh Trade Tax, Office of the Commissioner, Commercial Tax 20,000/- Reply to notice received and relevant documents sought.
9. MCD, Civic Centre 1,00,000/- In response to notice sent, D.D.No.071646 for Rs.1,00,000/- received on 11/11/2024. Total Rs. 1,82,125/-
13. It is contended by the OL, that despite issuing various notices to the Debtors of the Company, the office of the OL has neither been unable to recover the amount due from the Debtors of the Company nor has been able to recover the loans and advances made by the Company. Learned Counsel for the OL further submits, since the Ex-Directors the Company were not able to provide adequate information of the Debtors of the Company, no further amounts can be recovered from the Debtors or qua the Loans and Advances made by the Company. Also, the debts have been outstanding for more than three years and consequently have become time barred by law of limitation.
14. An examination of these details shows that the Company in liquidation had various debtors and creditors including various statutory authorities and Government establishments. However, the status that has been set out by the Office of the OL in paragraph 10 of the present Application, in some cases, is that notices were either undelivered or came back with the postal remarks as refused, for example, the notice sent to ESI, Noida (appearing at serial no. 6 as well 16) was returned on 30.07.2024 with the remark “refused”. Notice sent to Bharat Sanchar Nigam Ltd. (Govt.) was returned undelivered for incomplete postal address. A similar status has been provided for the Delhi Police headquarters. A similar response has also been given in the list of creditors where notices sent to a government company called Paschimanchal Vidyut Vitran Nigam Ltd. by the Office of the OL have been returned undelivered with the postal remarks “insufficient address” and “no such person”. It is the contention of the OL that since these dates and even the loans advanced have been outstanding for more than three years their recovery has become time barred in terms of the Limitation Act, 1963. 14.[1] It is however surprising that the Office of the OL is unable to locate fresh and new addresses of Government companies. A simple Google search would reveal the details including addresses of these Government companies. However, and in view of the fact that these efforts were not made within the prescribed period of limitation, today there are no chances of recovery.
15. Learned Counsel for the OL submits, that the Company had mortgaged a property situated at Plot No. D-141(A) measuring 1052.70 sq. meters and Plot No. D-141B measuring 946.53 sq. meters, Sector 40, Noida, Gautam Budh Nagar to the Bank of India, Secured Creditor. The OL further submits, that one surgery machine namely, The Gamma Knife [hereinafter referred to as “Surgery Machine”] kept at the premises was hypothecated by the Company to the Petitioner. 15.[1] Thereafter, the Bank of India, Secured Creditor to recover the pending claim from the Company amounting to Rs. 56,16,40,774.88/- had initiated proceedings under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [hereinafter referred to as “SARFAESI Act”] for sale of the mortgaged property. Pursuant to the auction, the premises was sold to M/s Blue Sapphire Health Care Private Limited (previously known as Asian Hospital), Auction Purchaser in the month of December, 2018 for Rs 32.17 Cr. 15.[2] The Bank of India has by a letter dated 12.08.2024 confirmed that under the Settlement Agreement, the accounts of the Company were settled from the realisation of the sale of assets of the Company.
16. The Surgery Machine kept at the premises, was not sold during the Auction. By an order dated 14.05.2024 passed by the Court, the Atomic Energy Regulatory Board (hereinafter referred to as ’AERB’) was directed to take necessary steps for de-commissioning of the Surgery Machine as it contained radioactive properties. Pursuant to the order dated 14.05.2024, AERB filed CA No. 609/2024 stating that The Gamma Knife, Surgery Machine has already been decommissioned on 28.03.2022 by M/s Elekta Medical Systems India Pvt. Ltd. 16.[1] Learned Counsel for the OL submits, that no information has been received from the AERB regarding the status of The Gamma Knife Unit after it was de-commissioned. A review of de-commissioning report reflects that after de-commissioning the Surgery Machine was disassembled and dispatched from the premises of the Company on 31.03.2022 to be transported to the Country of its origin (Canada) for safe disposal in the presence of officials of AERB.
17. The OL invited claims from the creditors of the Company through publication in the newspaper namely “Hindustan Times” (English) and “Veer Arjun” (Hindi) Delhi Edition on 14.04.2024. 17.[1] In pursuance thereof, the office of the OL did not receive any claims. However, prior to the advertisement inviting claims, the Office of the OL had already received two claims. The details of the two claimants are set forth below:
1. Commercial Tax Office, Noida UP (Preferential Creditor) 17.08.2020 Rs.4,06,087.00/-
2. Dr. Meditech Surgical & Diagnostic (I) Pvt. Ltd. (Unsecured Creditor) 27.12.2021 Rs.3,87,180.00/- 17.[2] It is contended by the OL, that the two claims could not be disbursed by the Officers of the OL as there were no movable or immovable assets of the Company in the possession of the OL.
18. It has been submitted by the Counsel for the Official Liquidator that OL is not seized of any other moveable/immoveable assets of the Company. It is stated that the OL has no further asset either moveable or immoveable property from which any money may be realized for the Company and therefore, no useful purpose would be served by keeping this matter pending. Thus, the Official Liquidator has sought permission to close the books of accounts of the Company as maintained by the office of the Official Liquidator. That the fund position of the Company as on 21.03.2025 is Rs. 1,76,538.65/- as affirmed by the OL.
19. Learned Counsel for the OL has submitted that it has incurred expenses of liquidation, government fee, audit fee and administrative expenses and that after deducting these expenses, a sum of Rs. 1,61,941.65/has been received. It is contended that the surplus funds in the sum of Rs.1,61,941.65/- be transferred to the common pool.
20. The Supreme Court in the case of Rishabh Agro Industries Limited v. P.N.B. Capital Services Limited[1], has held that winding up proceedings only starts the process of closing the affairs of the Company and ultimately order of dissolution of the Company has to be passed. Relevant extract is reproduced below:
20.[1] In the case of Meghal Homes (P) Limited v. Shree Niwas Girni K.K. Samiti[2], the Supreme Court has held that an order for dissolution of the Company can be made either when the Company has wound up or due to insufficiency of funds the OL cannot proceed with winding up or for any other just reason. The relevant extract of Meghal Homes case is as follows: “When the affairs of the company had been completely wound up or the Court finds that the Official Liquidator cannot proceed with the winding up of the company for want of funds or for any other reason, the court can make an order dissolving the company from the date of that order. This puts an end to the winding up process”.
21. In view of the discussions above and the fact that no recovery would be possible given the lapse of time, given the settled position of law, this Court is of the opinion that it is expedient that the liquidation proceedings be brought to an end.
22. Accordingly, the following directions are passed:
(i) The Official Liquidator is permitted to close the Books of
(ii) The Official Liquidator is permitted to transfer the balance amount in respect of Rs. 1,61,941.85/- to the Reserve Bank of India under Section 555 of the Act.
23. Accordingly, the Company, Goodwill Hospital and Research Centre Ltd. is dissolved. The Official Liquidator is also discharged. 23.[1] A copy of this order be communicated to the Registrar of Company by the office of the Official Liquidator.
24. The Application is disposed of in the aforegoing terms. Consequently, the Petition is also disposed of. All pending Applications stand closed.