Bikash Swain vs Krishan Kountry Ventures Pvt. Ltd

IN THE MATTER OF: Bikash Swain ...Appellant

Versus Dinbandhu Satpathy & Ors. ...Respondents Present: For Appellant: Mr. B.P.Singh, Mr. Nakul Nirwan, Mr. Pushkin Choudhary and Mr. Harsh Mundey Advocates. For Respondents: Mr. Malak Bhatt and Mr. Udbhav Nanda, Advocate for R2 &4 ORDER

14.11.2022: Heard Mr. B.P.Singh assisted by Mr. Nakul Nirwan, learned

counsel for the Appellant and Mr. Malak Bhatt assisted by Mr. Udbhav Nanda,

learned counsel for the Respondent No.2- Dinbandhu Satpathy & Respondent

No.4. - Shaji Sivadasan. Despite valid service of notice, the Respondent No.1 &

Respondent No.3 have preferred not to appear during hearing of the appeal.

2. The present appeal has been preferred under section 421 of the Companies

Act, 2013 (hereinafter referred as to 'Act') against an order dated 10.02.2022

passed by National Company Law Tribunal, Cuttack Bench, Cuttack (hereinafter

referred as to 'NCLT') in CP No. 01/CB/2021.

3. The operative portion of the order is quoted herein below:

"1. Krishna Kountry Ventures Private Limited,

CIN: U452000R2006PTC008913, having its registered

Company Appeal (AT) No.52 of 2022 1 office at HIG Duplex -26, Sailshree Vihar,

Chandrasekharpur, Bhubaneswar, Dist- Khurdha 751023

be wound up under Section 273 (1) (e) of the Companies

Act, 2013.

2. Petitioner is directed to issue public announcement

within fourteen days in one of the leading English

newspapers as well as in one vernacular newspaper

having wide circulation where the registered office of the

Corporate Debtor is situated under Rule 20 of the

Companies (Winding Up) Rules, 2020

3.Sagarika Mishra (Reg. No. IBBI/IPA-001/IP-

P0104/2017 2018/11665 having address at HIG-108,

Phase-1, Kanan Vihar Patia, Bhubaneswar Khordha,

Orissa, 751031 [email id: mishraságarika@yahoo.com is

hereby appointed Liquidator who shall take in her custody

the Assets of the Company and proceed to settle the

claims/debts against the aforesaid company as per the

applicable. provisions of law.

4.Registry is Directed to issue notice of appointment to the

Liquidator forthwith via e-mail and speed post calling her

to produce written consent within one week of receipt of this

order.

Company Appeal (AT) No.52 of 2022 2

5. On receipt of this order the Liquidator shall file a

declaration within seven days in the prescribed form

disclosing conflict of interest or lack of independence in

respect of her appointment as required under Section 275(6)

of Companies Act, 2013.

6. That the Company Liquidator aforesaid forthwith take

charge of all the property effects actionable claims and

books and papers of the said company.

7. The Company Liquidator shall cause a sealed copy of

this order to be served on the company by prepaid

registered post.

8. That the said petitioner do serve a certified copy of this order on the Registrar of companies not later than one month from this date.

9. That the cost of the said petition shall be paid out of the assets of the said company.

10.The Liquidator shall forthwith take charge of all the property effects actionable claims and books and papers of the said company.

11. All concerned are directed to co-operate with the Liquidator to complete her above task.

Company Appeal (AT) No.52 of 2022 3

12. Registry is hereby directed to communicate a copy of this Order to the Applicant, the Registrar of Companies Cuttack, Odisha and appointed Liquidator by Speed Post, e-mail, immediately, and in any case, not later than two days from the date of this Order.

13. The Petitioner who has filed the Company Petition is directed to personally ensure compliance of this order,

14. On such delivery and after duly complying with the above directions, the Registrar of Companies, Odisha is directed to, on his office name and seal; publish the order in the Official Gazette.

15.This order is confined to granting permission for winding up of the applicant Company under Section 272 of the Companies Act, 2013 as per the power/jurisdiction conferred on this Bench of the Tribunal under Section 273 of the Companies Act, 2013.

16.Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities.

17. File be consigned to records."

4. The aforesaid order was passed on a petition, filed by the Respondent No.2

- Dinbandhu Satpathy, which was filed under Section 271-272 of the Act for

Company Appeal (AT) No.52 of 2022 4 winding up of Respondent No.1- M/s. Krishan Kountry Ventures Pvt. Ltd.

(hereinafter referred to as 'Company').

5. Short facts of the case is that the said company was incorporated in the

year 2006. As per Memorandum and Articles of Association of the Company, the

Company was incorporated with following object:

"3(i) To carry on the business of developers of urban and

rural immovable properties and to act as builders,

engineers, surveyors, architects, consulting engineers,

building experts and advisors, decorators, designers,

planners, house owners and house sellers of

flats, munsionettes, dwelling houses, shops, offices, hotels

and recreational complexes, stadia, industrial estates,

lessees of lands, flats and other immovable properties

wherever situated or rights or interests therein or connected

therewith, to prepare building sites and to construct

reconstruct, pull down alter, improve, decorate, and furnish

and maintain flats, dwelling houses, shops, offices, resorts,

buildings, hotels and recreational complexes, industrial

estates, club works and conveniences, to lay out roads and

pleasure gardens and playgrounds, Disneyland's water

parks, fair and exhibition grounds and to do incidental and

Company Appeal (AT) No.52 of 2022 5 ancillary things which may be necessary for achieving the

aforesaid objectives.

II. To print, publish or otherwise carry on the business of

publishers, and Printing of Newspaper, Magazines,

periodicals, Journals, Calendars, posters, Leaflets,

Textbooks, Literary work and carry on the business of

Television in the area of News channels, Entertainment

channels, sports channels etc."

6. It is not in dispute that since continuously for three years, no return was

filed on behalf of the Company before the Registrar of Companies, the name of

the company was struck off in the year 2017.

7. Subsequently, the Respondent No.2 claiming to be one of the

'Contributory' of the Company, after noticing the fact that there was no operation

of the company wherein he had invested to the tune of Rs. 25 lakh, purchasing

a piece of land, the Respondent No.2 approached the Ld. NCLT for winding up

under Section 271-272 of the Act.

8. Before further proceeding, it is necessary to reproduce Section 271 & 272

of the Act:

"271. A company may, on a petition under section 272, be

wound up by the Tribunal,--

Company Appeal (AT) No.52 of 2022 6

(a) if the company has, by special resolution, resolved that

the company be wound up by the Tribunal;

(b) if the company has acted against the interests of the

sovereignty and integrity of India, the security of the State,

friendly relations with foreign States, public order, decency

or morality;

(c) if on an application made by the Registrar or any other

person authorised by the Central Government by notification

under this Act, the Tribunal is of the opinion that the affairs

of the company have been conducted in a fraudulent manner

or the company was formed for fraudulent and unlawful

purpose or the persons concerned in the formation or

management of its affairs have been guilty of fraud,

misfeasance or misconduct in connection therewith and that

it is proper that the company be wound up;

(d) if the company has made a default in filing with the

Registrar its financial statements or annual returns for

immediately preceding five consecutive financial years; or

(e) if the Tribunal is of the opinion that it is just and equitable

that the company should be wound up.

Company Appeal (AT) No.52 of 2022 7

272. (1) Subject to the provisions of this section, a petition to

the Tribunal for the winding up of a company shall be

presented by--

(a) the company;

(b) any contributory or contributories;

(c) all or any of the persons specified in clauses (a) and (b);

(d) the Registrar;

(e) any person authorised by the Central Government in that

behalf; or

(f) in a case falling under clause (b) of section 271, by the

Central Government or a State Government.

(2) A contributory shall be entitled to present a petition for the

winding up of a company, notwithstanding that he may be

the holder of fully paid-up shares, or that the company may

have no assets at all or may have no surplus assets left for

distribution among the shareholders after the satisfaction of

its liabilities, and shares in respect of which he is a

contributory or some of them were either originally allotted to

him or have been held by him, and registered in his name,

for at least six months during the eighteen months

Company Appeal (AT) No.52 of 2022 8 immediately before the commencement of the winding up or

have devolved on him through the death of a former holder.

(3) The Registrar shall be entitled to present a petition for

winding up under section 271, except on the grounds

specified in clause (a) [of that section]: Provided that the

Registrar shall obtain the previous sanction of the Central

Government to the presentation of a petition: Provided further

that the Central Government shall not accord its sanction

unless the company has been given a reasonable opportunity

of making representations.

(4) A petition presented by the company for winding up before

the Tribunal shall be admitted only if accompanied by a

statement of affairs in such form and in such manner as may

be prescribed.

(5) A copy of the petition made under this section shall also

be filed with the Registrar and the Registrar shall, without

prejudice to any other provisions, submit his views to the

Tribunal within sixty days of receipt of such petition."

9. On filing of said petition, the aforesaid impugned order was passed which

has been assailed by the Appellant, who claims to be one of the 'Founder

Director' of the company in question. Mr.B.P. Singh, Ld. Counsel for the

Appellant assailing the impugned order, has firstly argued that the Ld. NCLT

Company Appeal (AT) No.52 of 2022 9 while passing order, had completely ignored the objection raised by the Appellant

herein. He further submits that the Respondent No.2 before the NCLT, had made

suppression of fact. He submits that, despite the fact that one of the 'Writ

Petition' filed by the R2, was pending before the 'Hon'ble Orissa High Court', this

fact was suppressed by the R2. He further submits that such objection was

raised by the Appellant on filing reply before the NCLT. However, Ld. NCLT

ignoring those facts, has passed the impugned order. He submits that on such

error, this court may interfere with the impugned order.

10. Ld. Counsel for the Appellant further submits that the Appellant wanted

to take steps for revival of the Company and revival plan has also been prepared.

Ld. Counsel for the Appellant has referred to the said plan which starts from

page 105 to 144 of the Appeal paper book. He submits that once there was a

scope for revival of the company, the Ld. NCLT, instead of going for winding up,

was required to give a chance to the Appellant for revival of the same which has

not been done. According to him, the order impugned is liable to be set aside.

11. Mr. Malak Bhatt, learned counsel for the Respondent No.2 & 4 opposing

the appeal and submits that Ld. NCLT has committed no error in passing the

impugned order. He has drawn our attention to page 18 of his reply i.e.

'Resolution of Board Meeting' dated 20.05.2012. He has also drawn our attention

to Paragraph 2 &3 of the said resolution which are quoted herein below:

"2) Shri Bikash Swain presented the necessary sale

deeds for a total of Ac10.720 dec of land purchased

Company Appeal (AT) No.52 of 2022 10 at a cost of Rs. 63,75,450/- in addition to the cost

incurred on registration, legal and incidental

expenditure amounting to about Rs. 3,00,000/-

3)Shri Bikash Swain informed that Rs.55,00,000/-

loaned to the Company by Shri Shaji Sivadsan Rs.

30,00,000/- & Dinabandhu Satapathy

@Rs.2500000/- each, has been fully utilized for the

above purchase."

12. By way of referring the aforesaid facts, it was argued that the Respondent

No.2 besides being Director, was also one of the Contributory and as such under

the Act, he was entitled to file Petition under Section 271-272 of the Act. Besides

this, he has referred to provisions contain in Section 271(d) &(e) to substantiate

that in case of non-filing of the return by the Company continuously for five

years, petition can be filed for winding up. According to him, entity of Respondent

No.2 as the 'Contributory' and as well as the fact i.e. non-filing of the return by

the company continuously for five years, is not in dispute and as such there was

no question to raise objection on the point of filing of the petition before the NCLT

by R2. In reply to the objection raised by the Ld. Counsel for the Appellant, with

respect to concealment of fact, he has drawn our attention to Para 10 at page 64

of the appeal paper book and the same is reproduced herein below:

Company Appeal (AT) No.52 of 2022 11

"10. That, as consequent of the company failing to file

annual return for three continuous period of three

financial years the Petitioner was disqualified as a

director under section 164(2)(a) of the Act for which he

approached the Hon'ble High Court of Orissa in W.P(C)

No. 18424 of 2019 wherein the Hon'ble High Court

suspended such disqualification."

13. Ld. Counsel for the Respondent submits that it is true that R2 had filed

Writ Petition before the Hon'ble Orissa High Court vide WP(C) No. 18424 of 2019

but said writ Petition was not having any bearing with the filing of petition under

section 271-272 of the Act. He submits that said Writ Petition was filed

questioning his disqualification as 'Director' in respect of other companies.

Accordingly, it was submitted that it was not a case of suppression or

concealment of fact before the NCLT.

14. Accordingly, it has been argued that considering the fact that the amount

contributed by the R2, is lying in the company and the company which is

completely non-operational and having only assets i.e. the land in question, the

R2 was having no option but to file petition for winding up. Ld. NCLT by

impugned order has committed no error.

15. Besides hearing, ld. Counsel for the parties, we have also perused the

materials available on record. Of course, Ld. Counsel for the Appellant repeatedly

argued that the fact was suppressed before the NCLT regarding filing of the Writ

Company Appeal (AT) No.52 of 2022 12 Petition and Ld. Counsel for the Appellant to substantiate his submission had

drawn our attention to page 68, paragraph 17(V) of the Memo of Appeal i.e.

Application filed by the R2 before the NCLT. It is appropriate to reproduce the

same as follows:

"17(V). the petitioner states that it has not

previously filed an application or writ petition or a

suit with regard to the matters complained of in the

instant petition before any other authority or any

other bench of this Tribunal nor such application,

writ petition or suit is pending."

16. On examination of aforesaid statements, we do not find any ailment of

concealment of fact. This statement makes it clear that the Respondent No.2

herein, who was the Applicant before the NCLT, had not made any incorrect

statement. On the contrary, he had made specific statement that in respect of

the claim in the application filed before the NCLT, no other suit or writ petition

was pending. Moreover, the fact regarding filing of the Writ Petition, the R2 had

already disclosed in the petition before the NCLT.

17. In view of the aforesaid fact, the contention of the Ld. Counsel for the

Appellant regarding concealment of fact, has got no substance. Regarding the

claim made by the Ld. Counsel for the Appellant, that the R2 was not competent

to file petition for winding up, on examination of the provisions contain in Section

271 -272 of the Act and also the fact which has been disclosed in the reply at

Company Appeal (AT) No.52 of 2022 13 page 18 para 3&4, there can't be any question that R2 was not Contributory and

such being Contributory, he has rightly filed petition for winding up.

18. It may also be noted that though, the Appellant after impugned order, has

approach this Appellant Tribunal but till date, there is nothing on record as to

whether he has taken any step to get the company restored which has been

struck off under Section 248 of the Act, long back in the year 2017.

19. In view of the facts and circumstances of the case, we do not find any error

in the order impugned. The Appeal stands dismissed.

In view of this dismissal of this appeal, interim order, if any stands

vacated.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Ashok Kumar Mishra] Member (Technical)

Raushan/gc

Company Appeal (AT) No.52 of 2022 14