2019 (4) TMI 943 - Tri - Companies Law

Direction to pass Winding up of order in respect of first respondent company - appointment of Official Liquidator to take possession of the assets properties, books and records of the first respondent company by following the summary procedure of winding up - HELD THAT - Section 273 of the Companies Act lays down what order to be passed by the Tribunal if a petition under Section 272 of the Companies Act is presented before it. Section 273(2) of the Companies Act, 2013 says where a petition is presented on the ground that it is just and equitable that company should be wound up, the Tribunal may refuse to pass an order of winding up if it is of the opinion that some other remedies are available to the petitioners and the petitioners are acting unreasonably in seeking the remedy of winding up instead of pursuing other remedies. In the case on hand the company name has been struck off by the Registrar of Companies under Section 248 of the Companies Act. Petitioners are having a remedy to have the company restored and seek an order for operation of bank amounts that are freezed. By doing so petitioners have a remedy of getting back their amounts which is in the bank accounts. But petitioners without seeking restoration of the company under Section 252(1) or 252(3), unreasonably, asking for winding up order. Petition dismissed.

Issues:
1. Applicability of the correct section for winding up under the Companies Act.
2. Company struck off by Registrar of Companies due to non-compliance.
3. Allegation of loss of substratum and failure to achieve main object.
4. Invocation of summary procedure under Section 360 of the Companies Act.
5. Objection by Registrar of Companies regarding maintainability of winding up petition.
6. Availability of alternative remedies before seeking winding up order.
7. Entitlement to file a winding up petition when the company's name is struck off.

Analysis:

1. The judgment addresses the issue of the correct section applicable for winding up under the Companies Act. It clarifies that post the amendment, Section 271(1)(e) is to be applied instead of Section 271(1)(g) for cases filed after 15.11.2016.

2. The judgment discusses the company being struck off by the Registrar of Companies due to non-compliance with statutory requirements, leading to the loss of substratum and failure to achieve the main object, which are grounds for winding up.

3. It examines the invocation of the summary procedure under Section 360 of the Companies Act, highlighting that for such a procedure, the company must belong to a class prescribed by the Central Government, which was not applicable in this case.

4. The objection raised by the Registrar of Companies regarding the maintainability of the winding up petition is addressed, emphasizing that the company's restoration should have been sought before approaching the Tribunal.

5. The judgment delves into the availability of alternative remedies before seeking a winding up order, pointing out that the petitioners unreasonably skipped the restoration process under Section 252(1) or 252(3) to directly seek a winding up order.

6. It concludes by stating that a company not listed in the Register of Companies is not entitled to file a winding up petition, leading to the dismissal of the petition without any costs being awarded.

This detailed analysis of the judgment from the National Company Law Tribunal, Allahabad Bench, provides a comprehensive understanding of the issues involved and the legal reasoning applied in the decision-making process.

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