2021 (9) TMI 740 - Tri - Companies Law

Tribunal grants winding up petition due to company defaults and fraud

Registrar of Companies Versus Saradha Build Creation Pvt. Ltd.

The Tribunal granted the petition for winding up under Sections 271(c) and (d) of the Companies Act, 2013, due to the Respondent Company's continuous ... 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 for by the Petitioner. The order is hereby passed for winding up of the Company, Saradha Build Creation Pvt. Ltd., under the provisions of Section 271(c) and (d) of the Companies Act, 2013 - Application allowed. Issues:Petition for winding up under Sections 271(c), (d) and 272(3) of the Companies Act, 2013 based on non-filing of Annual Returns and Balance Sheet for consecutive financial years.Analysis:The Petition was filed by the ROC, Guwahati seeking winding up of the Respondent Company due to non-filing of Annual Returns and Balance Sheet as per the Ministry of Corporate Affairs' findings. The Petitioner obtained Central Government's sanction and duly informed the Company about the defaults. The Company did not respond, leading to the initiation of the winding up process. The Petitioner highlighted the Company's inactivity for over five financial years and the lack of response to statutory notices.The Petitioner requested winding up under Sections 271(c), (d) and 272(3) of the Companies Act, 2013, citing the Company's prolonged defaults and minimal assets and liabilities. Referring to the fraudulent activities of other group companies, the Petitioner argued for equitable winding up of the Respondent Company. The Petitioner also sought the appointment of an IRP as Liquidator and emphasized the necessity of immediate action to prevent irreparable losses.The Petitioner presented the case for winding up, requesting possession of the Company's assets by the IRP/Official Liquidator. The Petitioner referenced a similar order by the NCLT, Kolkata Bench in a related matter. The Petitioner outlined the Company's defaults and the need for winding up under Sections 271(c) and (d) of the Companies Act, 2013.The Tribunal analyzed the evidence and submissions, noting the Company's continuous defaults, lack of response, and fraudulent activities in related group companies. Despite multiple opportunities given to the Respondent, no objections were raised. The Tribunal found the Company's affairs conducted fraudulently and the individuals involved guilty of misconduct, leading to the decision for winding up under Sections 271(c) and (d) of the Companies Act, 2013.The Tribunal ordered the winding up of the Company, appointed the Official Liquidator, and restrained the Company from disposing of assets. Costs were directed to be paid from the Company's assets, emphasizing timely completion of the winding up process. The Registry was instructed to inform the Liquidator promptly. The Tribunal disposed of the Company Petition, setting a timeline for the winding up process and issuing directions for compliance and issuance of a certified copy of the order upon request.