9911796707
TMI Blog2009 (5) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, Bombay. The objects for which the company was established have been stated in paragraph 3 of the application. 3. The company had in March, 1947, purchased an immovable property at Mount Pleasant Road, Mumbai, which was let out up to December, 1950. Thereafter, the said immovable property was demolished and the area of the land was opened up. The land came to be leased to one Malabar Hill Co-operative Housing Society Ltd. (for short "the society") for a period of about 21 years and 7 months. Initially, the lease was fixed at Rs. 1,333 per month and from April, 1954, the same was fixed at Rs. 4,000. The society was to put up apartments on the open land and at the end of the lease period the land together with the superstructure was to be handed over to the company. Though the superstructure came to be constructed, the society paid rent to the company only up to July/August 1954. 4. In view of the disputes between the company and the society, the company filed a suit against the society, in the Small Causes Court, Mumbai, for recovery of arrears of rent. Leave came to be granted on condition that the society should deposit Rs. 1 lakh. The said order was confirmed by the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are hereby appointed liquidators for the purpose of such winding up with powers to each one of them to exercise all the powers of liquidators and that the remuneration of such liquidators for their services in winding up be fixed at Rs. nil." 10. At the meeting of the board of directors of the company it was resolved to make compliances in terms of section 488 of the Companies Act, 1956 and accordingly, the needful was done. The financial position of the company as on 19-1-1970, i.e., the date immediately preceding the date on which the company was resolved to be wound up voluntarily, is tabularised in paragraph 16 of the application. At an extraordinary general meeting held on 20-1-1970, it was resolved by the shareholders of the company that the company be wound up voluntarily and that Mr. Gautam Sarabhai and Mr. C. C. Kapadia be appointed as liquidators for the purpose of such winding up. Vide further resolution dated 18-3-1970, the said liquidators were authorised to complete the same of the reversionary right, title and interest of the company in the land, hereditament and premises in favour of the society by accepting the balance purchase price of Rs. 16,30,020. The reversi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it at call. In the financial statement (annexure H), the rights have been estimated to realise Rs. 60 lakhs. 14. By an application made in March 2004, a firm of architects have submitted plans to the Municipal Corporation proposing usage of FSI in the society. The said application is under process and consideration of the Municipal Corporation. 15. The company could not be wound up completely pending the realisation of the value of the FSI. It is in the said circumstances, as aforesaid, a special resolution came to be passed at the extraordinary general meeting of the contributories of the company held on 11-2-2009 (annexure K) wherein it was resolved that subject to the provisions of the Companies Act and the directions of this court (which the liquidators of the company shall seek) the special resolution to voluntarily wind up the company passed at the extraordinary general meeting dated 20-1-1970, be rescinded and the winding up be permanently stayed or recalled. 16. The present application has been filed in the aforesaid circumstances for permanently staying the voluntary liquidation of the company, discharging the liquidators, reviving and restarting the company and for oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction that the voluntary winding up of the company should be permanently stayed. Mr. Soparkar has accordingly submitted that the application deserves to be granted. 19. On notice being issued to the liquidator attached to this court, the liquidator has filed his report dated 4-4-2009. In the said report it has been stated by the official liquidator as follows : In fact, the official liquidator comes into picture in respect of the companies in voluntary liquidation, only after realisation of all the assets and distribution amongst the creditors and contributories gets concluded, and a final meeting of contributories is held and all the books and records of the company are submitted to the official liquidator by the voluntary liquidators for his scrutiny and examination for submitting a report to this Hon'ble Court for dissolution of the company. In this case, that stage has not yet come and, therefore, the official liquidator does not have any information or records to verify and to comment on the proceedings of the voluntary liquidation and the manner in which the voluntary winding up of the company has been conducted by its liquidators. 20. The main controversy in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed or the company should be finally wound up/the resolution to voluntarily winding up the company should not be interfered with. In the aforesaid context insofar as the pleadings in the present application and material for the purposes of this application are concerned, the same are contained in paragraph 30(i) to ( vii) reproduced. The company has now become entitled to a valuable right in the form of FSI in Darshan Apartment of the society, which it is possible for the company to encash or to utilise, acquire for commercial usage, the company if revived, the value of the FSI in Darshan Apartment can be a leverage to restart its business as per the object clause of its memorandum of association. The contributories and the equity shareholders of the company have also expressed their willingness to subscribe to the equity share capital of the company as may be determined by the reconstituted board of directors. It is also stated that the company has no liabilities to be paid for and the FSI is estimated to realise much more than its cost as reflected in the balance-sheet of the company (stated in paragraph 33 of the application). No dues are stated to be payable to the Income-tax D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat was necessary in order to achieve the object for which the company had been incorporated. 25. Even in the present case, during the course of hearing, the court has asked certain details so as to satisfy the court that after the resolution was passed way back in 1970 for taking the company into voluntary winding up, the company through its voluntary liquidator has complied with all the statutory requirements and affidavit is filed on 9-5-2009, by the liquidator of the company wherein it is reiterated and confirmed that there are no outstanding amounts/undisputed demands pending and/or payable by the company to the Income-tax Department. In this context, a copy of income-tax returns of the company for the last ten years, copy of the returns filed by the company with the Registrar of Companies for the last ten years and copy of the assessment orders for the years issued by the Income-tax Department to the company are produced on record. 26. In the aforesaid factual background and the powers of this court, this court is of the opinion that it will not be detrimental to anyone if the company is restarted. 27. In the circumstances and particularly in view of the fact that the shar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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