2021 (5) TMI 569 - Tri - Companies Law

Winding up the Respondent Company - Section 271 (c), (d) and 272(3) of the Companies Act, 2013 - HELD THAT - The affairs of the company have been conducted in a fraudulent manner, the persons concerned in the formation or management of its affairs have been found guilty of fraud, misfeasance or misconduct in connection therewith and that the company has made a default in filing with the Registrar its financial statements or annual returns for immediately preceding five consecutive financial years. Hence it is found proper that the Company be wound up in the interest of justice and as prayed. The Official Liquidator attached to the Hon ble High Court, Guwahati is appointed as the Liquidator for winding of the Company, Saradha Realtors Pvt. Ltd., with directions to take immediately the possession of the assets and properties along with the books of Accounts of the Company - Application allowed.

Summary

Issues:
1. Winding up petition filed under Sections 271 (c), (d) and 272(3) of the Companies Act, 2013.
2. Jurisdiction of the National Company Law Tribunal, Guwahati.
3. Default in filing Annual Returns and Balance Sheet by the Respondent Company.
4. Sanction obtained from the Central Government for proceeding with the petition.
5. Allegations of fraudulent conduct and non-functioning of the Respondent Company.
6. Appointment of Official Liquidator and directions for winding up process.

Analysis:

1. The Petitioner, ROC, Guwahati, filed a winding up petition under Sections 271 (c), (d) and 272(3) of the Companies Act, 2013 against the Respondent Company for not filing Annual Returns and Balance Sheet for five consecutive financial years. The petition was sanctioned by the Ministry of Corporate Affairs, Government of India.

2. The Petitioner asserted that the petition falls under the jurisdiction of the National Company Law Tribunal, Guwahati, based on the location of the Company's Registered Office. The application was filed within the prescribed limitation period.

3. The Respondent Company was found to have not filed its Annual Returns and Balance Sheet for more than five years, leading to the initiation of the winding up petition. Despite notifications and opportunities, the Respondent Company did not respond to the defaults.

4. The Petitioner obtained prior sanction from the Central Government to proceed with the winding up petition, as evidenced by the attached sanction letter. The Respondent Company's lack of response and non-compliance further strengthened the case for winding up.

5. Allegations of fraudulent conduct and non-functioning of the Respondent Company were supported by the findings from the Ministry of Corporate Affairs and the report of S.F.I.O., indicating misfeasance and misconduct by the Promoters/Directors. Previous orders for winding up related to other group companies were also cited.

6. The Tribunal, after thorough consideration of the facts and submissions, found the Respondent Company's affairs conducted fraudulently and the management guilty of misfeasance. Consequently, an order for winding up the Company under Sections 271 (c) and (d) of the Companies Act, 2013 was passed. The Official Liquidator was appointed to oversee the winding up process and ensure compliance within a specified timeframe. The Company was restrained from disposing of its assets, and costs were to be paid from the proceeds of the Company's assets.