2021 (7) TMI 704 - Tri - Companies Law

Winding of 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 for by the Petitioner. The order is hereby passed for winding up of the Company, Bhasank Foods Pvt. Ltd., under the provisions of Section 271 (c) and (d) of the Companies Act, 2013 - Petition disposed off.

Summary

Issues:
1. Petition filed for winding up of the Respondent Company under Sections 271(c), (d), and 272(3) of the Companies Act, 2013.
2. Jurisdiction of the National Company Law Tribunal, Guwahati.
3. Default by the Respondent Company in filing Annual Returns and Balance Sheet.
4. Previous sanction obtained from the Central Government for filing the petition.
5. Allegations of fraudulent conduct and misconduct by the Company.
6. Appointment of Liquidator and directions for winding up process.
7. Costs and incidental expenses to be paid out of the Company's assets.

Analysis:

1. The Petition was filed by the ROC, Guwahati seeking the winding up of the Respondent Company under Sections 271(c), (d), and 272(3) of the Companies Act, 2013. The Petitioner highlighted that the Respondent Company failed to file Annual Returns and Balance Sheets for five consecutive financial years, as revealed from the Company's Master Data.

2. The Petitioner asserted that the National Company Law Tribunal, Guwahati had jurisdiction over the matter due to the location of the Company's Registered Office. The Petition was filed within the statutory limitation period, and previous sanction from the Central Government was obtained to proceed with the petition.

3. The Petitioner provided evidence that the Respondent Company did not respond to notices regarding the defaults and that the Company had not been functioning for more than five subsequent financial years. The Petitioner also referenced fraudulent activities in other group companies and sought winding up based on just and equitable grounds.

4. The Tribunal noted that the Respondent Company failed to file financial statements and annual returns for five consecutive years, and the Company did not respond to notifications or appear before the Tribunal despite multiple opportunities. The Tribunal found reasons to believe that the Company's promoters/directors were involved in misfeasance and misconduct.

5. In the final order, the Tribunal concluded that the Company should be wound up under Sections 271(c) and (d) of the Companies Act, 2013. The Official Liquidator was appointed to oversee the winding up process, with specific directions to take possession of assets and submit progress reports. The Company was restrained from disposing of its assets, and costs were to be paid from the Company's proceeds.

6. The Tribunal emphasized the completion of the winding up process within a specified timeframe and issued directions for communication of the order to the Liquidator. The Company Petition was disposed of, and the Tribunal directed the issuance of a certified copy of the order upon compliance with formalities.