In the matter of Saurer Premier Technologies Private Limited
- CitationCP No.187-MB-IV-2021
Ratio decidendi
The rule this decision rests on
The Tribunal may order the dissolution of a company under section 59(7) of the Code where the liquidator has completed the winding up of the company's affairs, has realised and liquidated its assets, has discharged or settled the claims of creditors, and no distribution has been made to shareholders, with the remaining amount in the liquidation bank account having been applied towards liquidation expenses. Where the liquidator's claims-discharge is complete and no creditor has preferred a claim in response to the public announcement, the requirement of a special resolution approved by creditors holding two-thirds in value of the shares, as contemplated by the proviso to section 59(3), does not arise.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
2. This is a Company Petition filed under section 59 of the Insolvency and Bankruptcy Code, 2016 (hereinafter called “Code”) by a Corporate person, named Saurer Premier Technologies Private Limited [CIN: U29253MH2015PTC302196] through Mr. Shashant Yeola, Liquidator, Registration No.- IBBI/IPA-001/IP- P00310/2017-18/10574, to initiate Voluntary Liquidation proceedings under Code. The Corporate Person has complied with requisite formalities and procedure of liquidation as per law and has filed this Petition for its dissolution under section 59(7) of the Code.
MUMBAI BENCH, COURT-IV CP(IB)No.187/MB-IV/2021 3. The Petitioner Company was incorporated, under the provisions of Companies Act, 2013, on 27.10.2015 as a Private Company Limited by Shares with Registrar of Companies, Mumbai. The Registered office of the Company is situated at Unit 1002, 10th floor, Peninsula Tower, Peninsula Corporate Park, G.K. Marg, Lower Parel (w), Mumbai City MH-400013, Maharashtra.
4. The Board of Directors (BOD) of the Company in their meeting held on 25.10.2018 resolved to Voluntarily Liquidate the Company and also made a Declaration by way of affidavit on 28.09.2018, 29.09.2018, 03.10.2018 & 04.10.2018 respectively as required u/s 59(3)(a) of the Code along with Audited Financial Statement for the previous two financial years ended on 31.03.2017 and 31.03.2018.
5. The members of the Company in their Meeting held on 26.10.2018 passed a Special Resolution for the commencement of voluntary liquidation and appointed Mr. Shashant Yeola, Insolvency Professional, as liquidator of the Company.
6. The Liquidator made a public announcement of commencement of liquidation in Form A of Schedule I as per regulation 14 of Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2016 in the Free Press Journal (English newspaper) and in Navshakti (Marathi newspaper) in Mumbai edition on 30.10.2018 and Times of India and the Dinamini, Tamil edition on 03.11.2018 inviting for the submission of claims due to Saurer Premier Technologies Private Limited by various stakeholders. A copy of public announcement has also been filed with the IBBI.
MUMBAI BENCH, COURT-IV CP(IB)No.187/MB-IV/2021 7. The Petitioner has submitted the resolution for the commencement of liquidation, the appointment of a liquidator and a public announcement made in the newspaper to the Registrar of Companies in Form MGT-14 and GNL-2, which is annexed to the Company Petition.
8. The Liquidator has discharged the claims of Operational Creditors, Ex-employees and Statutory Authorities. The amount raceable from GST Authorities as refund in the books of company is not realizable in accordance with the opinion obtained by the GST Liquidator. Except this, the Liquidator has not received any claims from the operational creditors, financial creditors, workmen, employees and other stakeholders under the advertisement published in the newspaper.
9. Since the creditors claim were discharged by the liquidator, the requirement of the Special Resolution being approved by creditors having 2/3rd value of shares as required under proviso to sub-section (3) of Section 59 does not arise.
10. The Liquidator has intimated his appointment to the Income Tax Officer, Corp Ward 3, CBE, Aaykar Bhavan, Maharshi Karve Road, Mumbai - 400020 on 19.11.2018 and also intimating that the Liquidator has taken into custody or control all assets, property, effects and actionable claims of the company and will be operating the bank accounts of the company for and on behalf of the company. The Income Tax Department has informed that there is no arrear/outstanding tax demand pending vide letter dated 05.03.2020.
MUMBAI BENCH, COURT-IV CP(IB)No.187/MB-IV/2021 11. As per regulation 34 of IBBI (Voluntary Liquidation Process) Regulations, 2017, the Liquidator has duly opened a Bank Account in the name and style of “Saurer Premier Technologies Private Limited in Voluntary Liquidation” (A/c No.-082220110000232) with Gangapur Road Branch, Bank of India. The said Account was also closed.
12. The Liquidator has submitted his Preliminary Report dated 07.12.2018 and final report dated 03.11.2020 as required under Regulation 9 and 38 of IBBI (Voluntary Liquidation Process) Regulation, 2017 respectively. A copy of the final report of the Liquidator has also been submitted with the Registrar of Companies on 24.11.2020 and sent to IBBI via email on 24.11.2020 respectively.
13. The Liquidator has filed this petition before this Tribunal under section 59(7) of IBC seeking an order of dissolution of the Petitioner company.
14. On examining the submission made by the counsel appearing for the petitioner and the documents annexed to the petition it appears that the affairs of the company have been completely wound up, and its assets have been completely liquidated. No distribution has been made to the shareholder and the amount lying in the Bank account has been towards liquidation expenses.
15. In view of the above facts and circumstances and the submissions made by the Liquidator the Company deserves to be dissolved. Accordingly, we at this moment direct that the company shall be dissolved from the date of this order.
MUMBAI BENCH, COURT-IV CP(IB)No.187/MB-IV/2021 16. The Petitioner is further directed to serve a copy of this order upon the Registrar of Companies, with which the company is registered, within fourteen days of receipt of this order. The Registrar shall take necessary action upon receipt of a copy of this order.
Sd/- Sd/- Prabhat Kumar Kishore Vemulapalli Member (Technical) Member (Judicial) SVR/20.01.2023
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