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2021 (4) TMI 1136 - Tri - Companies LawWinding up of company - name of company struck off u/s 248 of Companies Act - award of costs and expenses to the petitioners, incurred by them for filing the winding up petition - HELD THAT - From a reading of Sub-Section (8) of Section 248, it is clear that Section 248 in no manner will affect the powers of this Tribunal to wind up the Company, the name of which has been struck off from the Register of Companies. Therefore, even after removal of the name of the Company from the Register of Companies this Tribunal can proceed with the petition for winding up under Section 271 of the Companies Act, 2013 - It also appears from the record that the Company got struck off on 29.08.2018 due to non-filing of Statutory Returns since 2001. Hence the criteria fixed under Section 271 (d), that the Company failed to file Financial Statements or Annual Returns for immediately preceding five consecutive years is fulfilled. The submission of the Petitioners that the Company is in the state of dormancy and its assets are lying is to be considered and that no purpose will be served if the same is kept unattended to. However, the submission of the Respondent No.1 regarding his spending some amount in connection with security arrangements, up keeping of records etc., he should be compensated for the same has force. Hence, while disposing of the property, he should be given a preference to buy the property, for such value that should be mutually agreed to by the Petitioners and Respondent No.1. The Provisional Liquidator is permitted to initiate appropriate action in accordance with extant provisions of Companies Act, to take custody or control of all the properties, effects and actionable claims to which Company is or appears to be entitled to and take such steps and measures, as may be necessary, to protect and preserve the properties of the Respondent No.1 Company and to avoid misuse of its property - Application disposed off.
Issues:
1. Winding up of the company under Section 271(d) of the Companies Act, 2013 2. Award of costs and expenses to the petitioners for filing the winding up petition 3. Consideration of respondent's objections and claims for expenses related to the company's assets 4. Interpretation of Section 248 of the Companies Act, 2013 in relation to the Tribunal's power to proceed with a winding up petition 5. Appointment of a Provisional Liquidator and related directions for the winding up process Analysis: 1. The petitioners sought to wind up the company under Section 271(d) of the Companies Act, 2013, due to the company's failure to commence operations since its incorporation. The company's name was struck off by the Registrar of Companies for non-filing of statutory returns, leading to the petition for winding up. The RoC confirmed the company's strike off and non-filing of returns, meeting the criteria for winding up under Section 271(d). 2. The respondent, while not objecting to the winding up, claimed expenses incurred in maintaining the company's assets. The Tribunal acknowledged the respondent's expenses and directed that he be compensated when disposing of the company's assets, allowing him preference to purchase the property at a mutually agreed value. 3. Section 248 of the Companies Act, 2013 was analyzed to determine the Tribunal's power to proceed with a winding up petition even after the company's name was struck off. It was clarified that the Tribunal retains the authority to wind up a company despite its removal from the Register of Companies, as per Section 248(8). 4. In light of the above findings, the Tribunal appointed a Provisional Liquidator to oversee the winding up process. The Provisional Liquidator was directed to file a declaration, take control of company assets, and submit progress reports periodically. The final report on winding up was to be submitted within two months for the Tribunal's consideration. 5. The Tribunal's order included the appointment of the Provisional Liquidator, instructions for cooperation from the existing management, and directions for the handling and reporting of the winding up process. The order was dated April 9, 2021, and copies were to be sent to all relevant parties promptly.
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