Full Text
HIGH COURT OF DELHI
Date of Decision: 03rd July, 2023
IMAGES CONSUMER MEDIA PVT. LTD. ..... Petitioner
Through: None.
Through: Ms. Sangeeta Chandra, Standing Counsel for OL. (M:9899820000)
JUDGMENT
1. This hearing has been done through hybrid mode. CO.APPL.377/2023 in CO.PET.418/2016
2. This is an application filed by the Official Liquidator seeking dissolution of the company. Ms. Sangeeta, ld. Counsel for the Official Liquidator submits that none of the immovable assets of the company - Horse Shoe Retail Holding (P) Ltd. and its sister concern SPA Luxury Lifestyle Ltd. were in the name of the company and the only assets, which the company owned, were some movable items, which were also sold in the nominal amount.
3. This application has been filed by the Official Liquidator (OL) under Section 481 of the Companies Act, 1956 read with Rule 9 of the Companies (Court) Rules, 1959, praying that Company (in Liqn.) i.e., the Respondent - Horse Shoe Retail Holding Pvt. Ltd. be dissolved and the OL be discharged from the duties of a liquidator.
4. Vide order dated 4th October, 2018, the OL attached to this Court was appointed as the Provisional Liquidator of the Company, with directions to take charge of all assets, records and books of accounts belonging to the Company (in Liqn.). The citations were published on 4th July, 2019 in the newspapers “Statesman” (English) and “Veer Arjun” (Hindi). Subsequently, vide order dated 2nd December, 2019, the Company (in Liqn.) has been finally wound up. The publication of citation for final winding up of the Company (in Liqn.) has been dispensed with vide order dated 15th May, 2023 in CA No. 302/2023.
5. It is stated in the application that as per the records of the Company (in Liqn.) kept at the office of the Registrar of Companies, Delhi and Haryana (ROC) and Master Data available on MCA portal, there were two Directors namely, Mr. Narendra Singh Bisht and Mr. Rajpal Singh Bisht. Both the Directors have filed their statement under Rule 130 and Statement of Affairs (SOA) has been filed only by Mr. Narendra Singh Bisht on 10th May,2019.
6. It is stated that the registered office of the Company (in Liqn.) is situated at 2822/18, Bedanpura, Karol Bagh, New Delhi-110005. The same was not sealed by the team from the office of the OL on its visit to the registered office on 12th January, 2019, for taking over the possession of assets and records/books of accounts, as the team was informed that the registered office was never let out/sold to the Company or its Directors; that there was an existing Sale Deed which was shown to the team and as the team did not find any sign board of the Company (in Liqn.) at the site.
7. The application points out that vide letter dated 21st February, 2019 received from Mr. Narendra Singh Bisht, Ex-Director it was informed that inventories/moveable assets (branded crockery items) of the Company (in Liqn.) as well as its sister concern namely, SPA Luxury Lifestyle Ltd. were lying at Room No. 01, First Floor, Khasra No 504, next to NDMC Girls School Rajokri, New Delhi-110038.
8. The team from the office of the OL visited the said address on 22nd February, 2019. After taking photographs of the premises and preparing a list of inventory of the articles lying therein along with a video of the inventory lying, the team sealed the main gate along with the lift which was installed adjacent to the room/hall where the inventory/moveable assets were kept.
9. This Hon’ble Court vide order dated 21st May, 2019 appointed Mr. Ankit Goel as the valuer for valuation of the moveable assets of the Company (in Liqn.) and its sister concern. The Valuation Report was submitted on 16th August, 2019 in a sealed cover. A combined Sale Notice for the said moveable assets was published in the newspapers on 27th January, 2020 and 28th January, 2020 respectively. Despite five prospective buyers having visited for inspection, no bids were received.
10. It is stated that while allowing CA No. 227/2022 permission was granted to appoint a fresh Valuer to revalue the moveable assets of the Company (in Liqn.). The goods were revalued and a combined hand bill for their auction was published to reduce the publication expense. Despite the moveable assets being put up for auction on three occasions by uploading the handbill on three websites, no bids were received. Vide order dated 1st June, 2022, this Court granted liberty to the OL to further reduce the reserve price at its discretion as no buyer could be found despite the moveable assets being put up for auction on three occasions.
11. It is stated in the application that although, no bids were received for the moveable assets in question, on the basis of the reserve price fixed, two offers were subsequently received by the office of the OL from interested buyers. After deliberation, a decision was taken to sell the movable assets to the higher bidder amongst the two bidders mentioned and accept the bid of R.S. Traders at their quoted price of Rs. 1 Lakh.
12. It is specifically pointed out that despite the bid offer being below the reserve price, since numerous efforts had already been made by the office to sell the moveable assets without any result and also, since the landlord of the premises wherein, the moveable assets of the Company (in Liqn.) were lying, was pressing for forthwith resumption of the premises, the acceptance of the bid of R.S. Traders was viewed as the most prudent option in the circumstances.
13. In terms of the permission granted by this Hon'ble Court in C.A. NO. 546/2022, the offer of RS Traders was accepted and the possession of moveable assets was handed over to the Auction Purchaser on 22nd September, 2022. After removal of all the moveable assets, the vacant possession of Shop Nos. 2, 3 and 8, Khasra No. 509/1, Next to NDMC Girls School, Rajokri, New Delhi (where the moveable goods had been shifted from Room No. 1, First Floor, Khasra No. 504, next to NDMC Girls School Rajokri, New Delhi) was handed over to the landlord/owner on the same day.
14. It has been pointed out in the application that the office of the Official Liquidator received a notice in OMP (ENF.) (COMM.) No. 221/2018 and Exe. Appl. (OS) No. 345/2022 filed by the Petitioner seeking adjournment of proceedings in the Company Petition sine die until the claim of the applicant was given to them by the OL. The said petition was disposed of on 24.03.2022 with liberty to the Petitioner to make a claim before the OL if and when, claims are invited.
15. Subsequently, vide letter dated 2nd November, 2022 the Petitioner was informed by the OL that the Company neither had any assets nor sufficient funds for inviting claims from the creditors and was in the process of dissolving the Company (in Liqn.).
16. It is also stated that as there are no other moveable/immoveable or other assets in the possession of the OL for realization in the interest of the creditors, no claims have been invited by this office. Thus, no fruitful purpose shall be served in keeping the winding up proceedings alive for the present Company (in Liqn.) and this is a fit case for dissolution of the Company (in Liqn.) under Section 481 of the Companies Act, 1956. The Official Liquidator may also be discharged from the duties of Liquidator of the Company (in Liqn.).
17. It is pointed out that no Criminal Complaint under Section 454(5) of the Companies Act, 1956 was filed against the Ex-Directors of the Company (in Liqn.).
18. The Hon'ble Supreme Court in Meghal Homes (P) Ltd. V. Shree Niwas Ginni K.K. Samiti & Ors. (2007) 7 SCC 753, has held 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”
19. It is submitted that keeping the winding up proceedings pending would only result in unnecessarily keeping a defunct Company on the rolls of the Registrar of Companies and it would also result in incurring establishment and legal expenses of liquidation proceedings.
20. In view of the above decision of the Hon'ble Supreme Court and the facts and circumstances of this case, the liquidation proceedings deserve to be brought to an end. Consequently, Company (in Liqn.) - Horse Shoe Retail Holding Pvt. Ltd. is hereby ordered to be dissolved.
21. The application points out that there is a pending bill for payment of the Valuer. The OL is permitted to pay the pending amounting of Rs. 47,200/- including CGST @9% Rs.3600/- and SGST @9% Rs.3600/- to Mr. N.R. Sharma, Valuer.
22. In view of the averments made in the application filed for dissolution of the Company (in Liqn.) pending application being CA No. 690/2020 (on behalf of Mr. Satnarain Yadav for permission to de-seal and use an area of property mentioned in prayer clause (1) and other directions towards the OL) has become infructuous and is disposed of along with the application under Section 481 of the Companies Act, 1957.
23. The application under Section 481 of the Companies Act, 1956 filed by the Official Liquidator is allowed in the above mentioned terms. CO. Pet. 418/2016
24. The application points out that there is a pending bill for payment of the Valuer. The OL is permitted to pay the pending amounting of Rs. 47,200/- including CGST @9% Rs.3600/- and SGST @9% Rs.3600/- to Mr. N.R. Sharma, Valuer.
25. The Official Liquidator is permitted to close the books of account of the Company. A copy of this order be communicated to the Registrar of Companies within thirty days by the Official Liquidator.
26. A copy of this order be communicated by OL to the Registrar of Companies within thirty days of its release and the Official Liquidator is discharged.
27. The Petitioner is at liberty to revive the Company Petition in case, the whereabouts of the Ex-Directors are found out. It is also clarified that the Petitioner is not precluded from instituting any criminal proceedings against the Ex-Directors of the Company (in Liqn.) as it, is prima facie, apparent that they have used the corporate façade of the Petitioner for transactions entered into by them and have failed to discharge their liability.
28. Next date of hearing stands cancelled.
PRATHIBA M. SINGH JUDGE JULY 3, 2023 dk/kt