IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.1041 OF 2009 Trade Marks, Patents, Designs & Copyright ) Owners Association of India ) Mr. R. S. Kelkar, i/b M/s Crawford Bayley & Co. for the Petitioner. CORAM : S. J. KATHAWALLA, J. DATE : 30TH MARCH, 2010 P. C. 1) By this Company Petition the Petitioner Company prays for voluntary winding-up, under the sub-heading of Member Voluntary Winding up, under the Law provided in Sections, 425(i)b, 433(f) and 484(1)(b) of the Companies Act, 1956. 2) The Petitioner Company is the Private Limited Company and was Registered on 27th April, 1953 under the provisions of the Company Act, 1913 having its Registered Office at Army & Navy Building, 3rd Floor, Mahatma Gandhi Road, Fort, Mumbai – 400 001. The Petitioner Company is engaged in the business of promotion and protection of interests of trademark, patents, designs and copyright owners in India. 3) As required under Section 484 of the Act, 1956 members of the Petitioner Company passed a Special Resolution at the Extra Ordinary General Meeting held on 11th December, 2008 for the voluntary winding up of the Petitioner Company. In the said Special Resolution the Members of the Company also resolved to appoint the Mr. G. S. Bhagvat and Mr. M. G. Subramaniam as the Joint Private Liquidators for the purpose of carrying out the voluntary winding-up of the Petitioner Company. The said Special Resolution runs as under:- “RESOLVED that pursuant to section 484(1)(b) of the Companies Act, 1956, the Company be wound up voluntarily, and that Mr. G. S. Bhagvat and Mr. M. G. Subramaniam be and are hereby appointed as Liquidators with all the powers under Section 512 read with Section 457 of the Companies Act, 1956, for the purpose of such winding up and that the remuneration of the said Mr. G. S. Bhagvat and Mr. M. G. Subramaniam be fixed at a sum of Rs. 5000/-(Five Thousand only) each in addition to his costs, charges and expenses. “RESOLVED further that Mr. G. S. Bhagvat and Mr. M. G. Subramaniam be and are hereby severally authorized: a. To obtain the requisite approval of the Members and/or creditors if any; b. To file applications to the High Court of Mumbai (hereinafter “High Court”); c. To file necessary applications with the Central Government, any other authority or body to obtain permissions, consents, sanctions or approvals for giving effect to the resolution of winding-up; d. To file affidavits, petitions, pleadings, applications or proceedings incidental or deemed necessary or useful in connection with the above proceedings and to engage counsels, advocates, solicitors, chartered accountants and other professionals and to sign and execute vakalatnamas wherever necessary and to do all acts necessary or incidental to the said proceedings for obtaining confirmation of Voluntary winding-up by the High Court; e. To take all steps necessary or incidental and considered appropriate with regard to the above applications and petitions and implementation of the Orders passed thereon and generally for putting through the process of winding-up and completing the same; f. To do all acts, deeds, matters and things necessary and convenient in relation thereto.” 4) Special Resolution passed by the Company was published by the Petitioner Company in Maharashtra Government Gazette dated 25th December, 2008 and in the Free Press Journal dated 16th December, 2008, which is within the time prescribed under Section 485 of the Companies Act, 1956. 5) The Company submits that prior to this Meeting (the EGM) dated 11th December, 2008, the EGM notice alongwith the Explanatory Statement has been sent to all the members of the Company. A specimen copy of the EGM notice alongwith the Explanatory Statement dated 17th November, 2008, is annexed at Exhibit “C” to the Petition. 6) The Company further submits that prior to the EGM, the Directors have made full enquiry in to its affairs and have formed the opinion that the Company has no debts. An affidavit of the Directors of the Petitioner Company declaring that the Petitioner Company has no debts is annexed at Exhibit “D” to the Petition and a copy of the Auditors’ report on profit and loss, as required by Section 488(2) of the Act is annexed at Exhibit “E”. 7) The Company has ceased to carry on business with effect from the date of passing of the Special Resolution for voluntary winding up at the Extra Ordinary General Meeting dated 11th December, 2008. In accordance with the provisions of Section 490 of the Act, Mr. G. S. Bhagvat and Mr. M. G. Subramaniam have been appointed as the Joint Private Liquidators of the Company, for the purpose of carrying out the process of voluntary winding-up. An extract of the resolution passed at the Extra Ordinary General Meeting confirming the appointment of Mr. G. S. Bhagvat and Mr. M. G. Subramaniam as Joint Private Liquidators is annexed at Exhibit “H” to the Petition. The Company submits that since Joint Private Liquidators have been appointed as per the provisions of Section 490 of the Act, in order to avoid duplication of work and costs, the need for appointment of an Official Liquidator of this Hon’ble High Court does not arise. 8) The Company submits that a notice of the appointment of Mr. G. S. Bhagvat and Mr. M. G. Subramaniam as Joint Private Liquidators of the Petitioner Company was given to the Registrar Of Companies as per the provisions of Section 493(1) & (2) of the Act. A copy of the notice of appointment of Mr. G. S. Bhagvat and Mr. M. G. Subramaniam as Joint Private Liquidators of the Petitioner Company dated 04th August, 2009 given to the Registrar Of Companies is annexed at Exhibit “I” to the Petition. The Company submits that upon their appointment as Joint Private Liquidators of the Petitioner Company, Mr. G. S. Bhagvat and Mr. M. G. Subramaniam have notified the Registrar Of Companies of such appointment. Copies of the consent letters, confirming their appointment as Joint Private Liquidators are annexed at Exhibits “J” & “K” to the Petition. 9) Thereafter, and upon completion of voluntary winding up, the Joint Private Liquidators made an account of the winding up and summoned a Final Meeting of the Company and its members for the purpose of laying the account before them. As per the provisions of Section 497(2) of the Act, the Notice of the Final Meeting was published in the Maharashtra Government Gazette dated 14th May, 2009, and in the Free Press Journal dated 15th May, 2009. A copy of the notice of the Final Meeting as published in the Maharashtra Government Gazette dated 14th May, 2009, is annexed at Exhibit “L” to the Petition and a copy of the notice of Final Meeting as published in the Free Press Journal dated 15th May, 2009, is at Exhibit “M”. 10) The Final Meeting of the Petitioner Company and its members for the purpose of having an account laid before them showing the manner in which the winding-up has been carried out, was held on the 15th June, 2009. A return was duly filed in the prescribed form by the Joint Private Liquidators with the Registrar Of Companies, regarding the conducting of the Final Meeting of the members of the Petitioner Company held on 15th June, 2009. A copy of the return filed with the Registrar Of Companies regarding conducting of the Final Meeting is at Exhibit “N” and a copy of the account of winding up, as approved at the Final Meeting, is at Exhibit “O” to the Petition. Even the Registrar Of Companies has duly registered the account of winding up and the return as filed by the Joint Private Liquidators on 15th June, 2009. 11) The Company affirms that it has no secured or unsecured creditors as on date of filing of this Petition. Further, the Petitioner Company has, through its Joint Private Liquidators, discharged all its liabilities and obligations towards its employees and has no outstanding claims or demands against it. A copy of the audited balance sheet of the Petitioner Company as on 15th June, 2009, is annexed at Exhibit “P” to the Petition. 12) Counsel for the Petitioner Company submits that the Company has duly complied with the procedure laid down in the Act, for a members’ voluntary winding up of a company. In view of the Special Resolution passed by the Petitioner Company that it may be wound up voluntarily, Counsel now urges this Court to make an Order for the voluntary winding up of the Petitioner Company. He further submits that in view of the aforesaid, it is just and equitable that this Court pass an order for the voluntary winding up of the Petitioner Company under and pursuant to the provisions of Sections 433(f) and 484(1)(b) of the Act. 13) Now therefore, in view of (a) the statement made in the Petition on affidavit; (b) the return dated 15th June, 2009, filed by the Joint Private Liquidators of the Petitioner (at Exhibit “N” to the Petition) with the Registrar of Companies; (c) said Liquidators’ account of winding-up, also dated 15th June, 2009 (at Exhibit “O” to the Petition); and (d) the audited balance-sheet of the Petitioner Company as on 15th June, 2009 (at Exhibit “P” to the Petition), I am satisfied that the Petitioner Company has no creditors, whether secured or unsecured and that no other claim, liability and/or obligation survives against it. 14) On 15th June, 2009, all members have unanimously resolved to voluntarily wind up the Petitioner Company and notice of that resolution has been duly advertised in the Official Gazette. No objection, nor any claim, has been registered to oppose this Petition. 15) Even otherwise, I am satisfied that all formalities in law, including those relating to a members’ voluntary winding-up, have been complied with. 16) Resultantly, the Petition is made absolute, in terms of prayer clauses (a) and (b). (S. J. KATHAWALLA, J.)