Back
2018 Supreme(Bom) 2356
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
Gautam Ramanbhai Patel - Appellant
Company Petition No. 1 of 2013
Decided On : 19-06-2018
R.G. Ramani, Adv., P. Kakodkar, Adv.
Headnote:
Companies Act, 1956 - Section 433, 434 and 439 - Present petition was admitted - Business of property - Company has only two shareholders, one being the petitioner and the other being Mr. Eric Sequeira, who is since dead. The petitioner are holding five thousand shares each since the formation of the Company. The Company has not carried on any business since inception which has been confirmed by the other Director by his letter - Company has also neither held any Annual General Meeting since inception nor has filed or prepared any audited balance sheet and has failed to comply with any of formalities as required in law due to "inconsolable disputes between the two directors" - Bank Account of the Company has been frozen and thus, according to the petitioner, the Company is defunct Company since inception. It is, in these circumstances, that the petitioner is praying for winding up of Company - Held, Under Section 433(g), Company can be wound up if it has made default in filing with the Registrar its balance sheet, profit and loss account or annual returns for five consecutive financial years - In my considered view, the provisions of Section 433(b), (c), (d) and (g) of the Act of 1956 would be attracted in this case and thus, it would be just and proper that the Company is wound up - Fact that the Company has not commenced and has failed to hold the statutory meetings and to deliver statutory reports, is explicit from the record, including the letter - As noticed earlier, there were only two shareholders/ directors of the Company petitioner and on the death, Number of members is reduced below two. Thus, Company, which is a private limited Company, is liable to be wound up also under Section 433(d) of the Act of 1956 - Petition is allowed
JUDGMENT
C.V. Bhadang, J. - This is a petition for winding up of Goan Wonderland Real Estate Pvt. Ltd (Company, for short) under Section 433, 434 and 439 of the Companies Act, 1956. The present petition was admitted on 07/03/2014.
2. As per the decision of this Court in the case of West Hills Realty Private Ltd Vs. Neelkamal Realtors Tower Pvt. Ltd. , (2017) 2 BCR 693, the petition is retained on the file of this Court as it is not liable to be transferred to the National Company Law Tribunal (NCLT, for short).
3. The Company was incorporated on 09/10/2006 under the Companies Act, 1956 (the Act of 1956, for short) as a Private Company limited, by shares with the Registrar of Companies. The registered office of the Company is situated at Miramar, Panaji, Goa.
4. The Company has authorised share capital of 10 Lakhs divided into 1 Lakh equity shares of Rs. 10/- each. However, the paid up capital of the Company is Rs. 1 Lakh only.
5. The Company was established inter alia with the object of carrying on the business of property and real estate developers and to act as contractors and to carry on business as real estate consultants, agents and investors.
6. The Company has only two shareholders, one being the petitioner and the other being Mr. Eric Sequeira, who is since dead. The petitioner and Mr. Eric Sequeira are holding five thousand shares each since the formation of the Company. The Company has not carried on any business since inception which has been confirmed by the other Director Mr. Eric Sequeira by his letter dated 18/09/2009. The Company has also neither held any Annual General Meeting since inception nor has filed or prepared any audited balance sheet and has failed to comply with any of the formalities as required in law due to "inconsolable disputes between the two directors". The Bank Account of the Company has been frozen since may 2007 and thus, according to the petitioner, the Company is defunct Company since inception. It is, in these circumstances, that the petitioner is praying for winding up of the Company.
7. Mr. Eric Sequeira filed reply opposing the petition. Mr. Eric Sequeira has set out the various properties, which are associated with Company, in which the Company has made financial investment. He has further set out the various litigations in which the Company is a party, including the cases filed by the petitioner. It is contended that the petition does not satisfy the criteria under which the Company can be wound up. It is contended that it was the responsibility of both the Directors, to hold quarterly meetings and Annual General Meetings, so as to comply with the provisions of the Companies Act and the Income Tax Act, irrespective of the differences. It is submitted that the petitioner has suppressed material facts and has come with unclean hands and the petition is, thus, liable to be dismissed. Mr. Eric Sequeira has prayed for a direction to the petitioner to file return as per the Company Law and Income Tax Act through a mutually agreed Chartered Accountant and for a direction to the petitioner to pay all dues, which he is liable to pay to the Company.
8. I have heard Shri Ramani, the learned Counsel for the petitioner.
9. Shri Ramani has referred to a letter dated 18/09/2009 from Mr. Eric Sequeira, which according to the learned Counsel for the petitioner would show that the Company has not carried out any business nor complied with statutory requirements of holding of meetings and filing of returns. He has taken me through the reply of Mr. Eric Sequeira and the rejoinder filed by the petitioner thereto, in order to submit that the case for winding up is made out. Shri Ramani, the learned Counsel for the petitioner has placed on record a public notice (Form No.STK-5A) dated 26/04/2017 from the Registrar of Companies, Goa, Daman and Diu, which shows that the name of the Company has been struck off from the register of Companies under Section 248(1) of the Companies Act 2013 (the Act of 2013, for
