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Madras High CourtCOMP.A/63/2019ordered

The Canara Bank v. A

2019-03-22Honourable Mr Justice M. Sundar6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 22.03.2019

CORAM

THE HON'BLE MR.JUSTICE M.SUNDAR Comp.Application No. 63 of 2019 in C.P.No.277 of 2010 and C.P.No.277 of 2010 The Official Liquidator, High Court, Madras as the Liquidator of M/s. Sirius Shipping Company Ltd (In Provisional Liquidation) .. Applicant This application is preferred, under Section 481 of the Companies Act, 1956 Read with Rules 9,11(b) of the Companies (Court) Rules, 1959, prays a)To take this report on record of the Hon'ble Court. b) To form an opinion that the Official Liquidator could not proceed with the affairs of the company in liquidation and it is just and reasonable to dissolve M/s. Sirius Shipping Company Ltd ( Under Liquidation) finally and accordingly to pass appropriate and consequential orders: c)To pass an order permitting the Official Liquidator to file the final account without auditing as there are no funds available in the credit of the company in Provisional Liquidation.

d)To permit the Official Liquidator to incur the expenses for the present application out of funds available in Common Pool Fund and e) To pass any such other orders that the Hon'ble Court deem fit and proper in the circumstances of the case.

For Applicant :Mr.Bavishetty Sridhar, Deputy Official Liquidator

ORDER

The aforesaid application being Company Application No.63 of 2019 has been taken out by the 'Official Liquidator attached to this Court' (hereinafter 'OL' for brevity) inter alia under Section 481 of 'The Companies Act, 1956' ('said Act' for brevity) with prayers to dissolve 'Sirlus Shipping Company Limited' (hereinafter 'said Company' for brevity) finally with consequential, incidental and collateral prayers.

2. Along with this application, 'report of OL dated 12.02.2019' (hereinafter 'said report' for brevity) has been annexed. A perusal of said report of the OL reveals that OL was appointed as Provisional Liquidator for said company vide orders dated 18.06.2014 made in C.P.No.277 of 2010 by this Court, inter alia with a direction to take charge of the assets and effects of the company. To be noted, copy of the said order of this Court is also annexed to the said report. Thereafter, the trajectory which the liquidation proceedings qua said company took have been adumbrated and articulated in paragraph Nos. 3 to 8 of said report of OL, which read as follows:

'3. It is submitted that the Official Liquidator, in compliance with the directions given by the Hon'ble Court vide the order mentioned supra, deputed his officials for taking possession of the assets at the registered office premises situated at New No.2, Old No.7, Indaraniammal

Street, Mylapore, Chennai-600 004. However it was informed to the Official Liquidator by one Mr.B.Selvaraj who was the Manager (Admin) of the company informed that all the assets of the aforesaid company (in provisional liquidation) were taken possession by State Bank of India, SAM Branch, Egmore, Chennai- 600 008 and sold out under SARFAESI Act during the year 2012 towards their dues. The Manager further added that M/s.Sirius Shipping Company Limited has already been merged with M/s.Teledata Marine Solutions Limited which was ordered to be wound up by the Hon'ble Court vide its order dated 18.06.2014 in C.P.No.275 of 2010 in the year 2007-2008. In view of the above, the Official Liquidator could not take any assets of the company under liquidation into his custody.

4.It is submitted that the ex-directors of the company had not filed the Statement of Affairs as required under Section 454 of the Companies Act, 1956 and also not handed over the books and records of the Company in Provisional Liquidation.

5.It is submitted that due to non-availability of the particulars of the debtors of the company in liquidation, the Official Liquidator could not file any application under Section 446 of the Act for recovery of amount due to the company and as on date no such application is pending for disposal before the Hon'ble High Court.

6.It is also submitted that the Official Liquidator has not file misfeasance application under Section 542 and 543 of the Act and as on date no such application is pending for disposal before the Hon'ble High Court.

7. It is submitted that the present petition is filed

in the year 2010 and according to the statement of the Manager (Admin) that the company was merged with M/s.Teledata Marine Solutions Ltd., a company which was also subsequently would up by the Hon'ble Court. Neither the petitioning creditor or the ex-directors have not brought this aspect to the notice of the Hon'ble Court before passing the winding up order in the year 2014.

8.It is submitted that the Official Liquidator has not called for any claims from the creditors of the company in liquidation as no particulars of assets and books and account were furnished by the Ex-Directors and he has also not received any voluntary claims from the creditors and as on date no such claim is pending for adjudication and settlement;.'

3. Apart from the aforesaid trajectory of the liquidation qua said company, final accounts statement has also been annexed to said report. A perusal of the final accounts statement annexed to said report reveals that there is no balance. Therefore the question of transfer of balance to the public account under Section 555 of said Act does not arise.

4. It is also submitted by learned Deputy OL Mr.Bavishetty Sridhar, who is before this Court that no assets are now available and no payment remains to be made. Therefore, it would be viable to have the dissolution prayer acceded to, is his further say.

5. The prayer in the aforesaid application reads as follows: 'a) To take this report on record of the Hon'ble Court.

b) To form an opinion that the Official Liquidator could not proceed with the affairs of the company in liquidation and it is just and reasonable to dissolve M/s.Sirus Shipping Company Ltd., (Under Liquidation) finally and accordingly to pass appropriate and consequential orders; c) To pass an order permitting the Official Liquidator to file the final account without auditing as there are no funds available in the credit of the company in Provisional liquidation.

d) To permit the Official Liquidator to incur the expenses for the present application out of funds available in Common Pool Fund Account.

and e) To pass any such other orders that the Hon'ble Court deem fit and proper in the circumstances of the case.

6. In the light of the narrative supra, the aforesaid prayed is acceded to and ordered as prayed for.

Consequently, OL is discharged and the main C.P.No.277 of 2010 will stand closed as the said company is dissolved. 22.03.2019 gpa/mp

M.SUNDAR.J., gpa/mp Comp.Application No. 63 of 2019 in C.P.No.277 of 2010 and C.P.No.277 of 2010 22.03.2019