A registered Public Charitable Trust cannot be wound up under Section 375 of the Companies Act, 2013, as it is governed by The Indian Trusts Act, 1882 and does not qualify as an unregistered company.

JUDGMENT

The instant petition has been filed under Section 375 of the Companies Act 2013 (hereinafter referred to as the “Act”) read with Rule 11 of the National Company Law Tribunal Rules, 2016 (hereinafter referred to as (“ NCLT Rules”) seeking directions to order the provisional winding up of the Respondent Association of Persons registered as Trust and to appoint a provisional liquidator for the Respondent till making of the final winding up order, to make an order for the winding up of the Association of persons registered as Trust and to appoint an administrator of the Associations of Persons registered as Trust.

2. The brief facts of the case stated in the petition are as follows:-

2.1. The Respondent is "Trust" which was initially created as an unregistered Trust and the date of its creation is not known. However, the said Trust executed an agreement with the petitioner on 12.12.2019 and thus apparently the Trust was created prior to 2019. However, it was registered in terms of "Deed of Declaration of Public Charitable Trust" and is thus an association of persons within the meaning of Section 375 of the Companies Act, 2013. The Petitioner has fulfilled all conditions mentioned as per Section 375 of the Companies Act, 2013 including:- the Amount in default is Rs.46,35,607/- and is more than Rs. 1.00 lakh, the statutory notice dated 22.04.2024 was served upon the Respondent giving 21 days' time to make payment and the notice was duly served by speed post (notice dated 22.04.2024 along with proof of dispatch and delivery are attached as Annexure A-1A of the petition) and Respondent is an association of persons consisting of 11 members and 2 settlers (total 13 members). The Registered Trust deed of the Respondent is attached as Annexure A-1.

2.2. Accordingly, all the provisions of winding up of a company as provided under the Companies Act, 2013 are applicable to the winding up of the Respondent under this Act. The reliance has been placed upon the decision of Hon'ble Karnataka High Court in the matter of Bangalore Timber Industries And Others vs Madras Sapper ExServicemen's Rehabilitation Association (1990) 68 COMPCAS 641 (KAR) which overruled the objection taken by the Respondent that the company petition was not maintainable under the provisions of section 583 of the Companies Act, 1956. It is submitted that section 583 of the Companies Act, 1956 is para-materia with section 375 of the Companies Act, 2013.

2.3. The Respondent Trust has been created by Sh. Swami Amrita Nand prior to 2019 and it appears that the Trust was not formally documented at that time, but it started the activities of the Trust as per the objectives mentioned in the Trust deed even prior to its registration including setting up Ashram buildings and for this purpose also started hiring building contractors. However, for the applicability of section 375 registration of the association of persons is not a sine qua non and the only requirement that at the time of winding up of the present petition, there should be more than 7 members and, in this case, there are 11 members and 2 settlers, total 13 members and hence this petition is maintainable.

2.4. The Petitioner is engaged in the business of construction in Punjab under the name of his proprietorship firm M/s Akal Sahai Infrastructure & Promoter. The Respondent, prior to its registration and through its president Sh. Swami Amrita Nand engaged the services of petitioner for the construction of 55000 SFT at Haridwar with boundary wall and peripheral passage of 15 ft wide app with paver block 60 mm thick and for this purpose an agreement dated 12.12.2019 was executed by the Respondent with the Petitioner for a total price of Rs.3.70 crores including GST for 40% of the amount and GST payable on balance 60% of the amount. A copy of the agreement dated 12.12.2019 is attached as Annexure A-2. The scope of work, the terms and conditions of the contract, payment terms etc. are all specified in the agreement dated