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TMI Blog2021 (4) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... atements 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. - C.P/115/KOB/2019 - - - Dated:- 9-4-2021 - Hon ble Shri Ashok Kumar Borah, Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are kept in the state of dormancy. Since the Petitioners are also in need of funds, the present petition is filed to permit the petitioners to wind up the Company and realise its assets. 7. Respondent filed his reply and stated that he doesn t have any objection in winding up of the Company M/s. Baksons (India) Private Limited. However, the concern of Respondent is as follows: - (i) Respondent is the Managing Director of the abovesaid Company. He has carried out many works as a Managing Director in setting up of the company. So far, he has been looking after the property as the Managing Director of the Company. Hence he has invested his labour, energy and time for looking after the property of the company. He has appointed 24 hours watch and ward personnel, and that he is paying salaries to them as also the land tax. He is regularly visiting the property and taking care of the up keeping of the records. Thus, on such heads, he is incurring huge expenses. As of now, he is bearing the same from his own pocket. Under such circumstances, his submission is that he should get the said expenses from the assets of the company. (ii) If the assets of the company are put for sale, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [***] (c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any applications within such period for obtaining the status of a dormant company under Section 455, (d) the subscribers to the memorandum have not paid the subscription which they had undertaken to pay at the time of incorporation of a company and a declaration to this effect has not been filed within one hundred and eighty days of its incorporation under Sub Section (1) Of Section 10-A; or (e) the company is not carrying on any business or operations, as revealed after the physical verification carried out under sub-section (9) of section 12,] (2) Without prejudice to the provisions of subsection (1), a company may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent. members in terms of paid-up share capital, file an application in the prescribed manner to the Registrar for removing the name of the company from the register of companies on all or any of the grounds specified in Sub-Section (1) and the Registrar shall, on receipt of such application, cause a public not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... winding up under Section 271 of the Companies Act, 2013. 12. 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. 13. At this juncture 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. 14. In the result, by exercising powers conferred on this Tribunal under Section 273 and other extant provisions of Companies Act,2013. this Tribunal pass the following: - ORDER I. This Tribunal as per Section 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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