Biraj Kumar Barua and Another vs Barua and Barua Drugs Pvt. Ltd. and Another

The instant company petition has been filed for winding up the respondent-company, i.e., M/s Barua and Barua Drugs Private Limited. The petitioners, who are the promoters of the respondent-company, have prayed for winding up, inter alia, on the ground that though the respondent-company was incorporated in the year 1992, no shares were subscribed and no statutory meeting of the company was held. The statutory returns were also not submitted by the company to the jurisdictional Registrar of Companies. A perusal of the averments made in the company petition would go to show that though the petitioners themselves are the promoters of the respondent-company, they have tried to shift the responsibility for the inability of the company to commence its business on the respondent No. 2, who according to the petitioners, was appointed as the Managing Director. On the aforesaid broad basis and particularly, in view of the fact that the respondent-company is yet to commence its business, the petitioners have sought for appropriate orders for winding up of the respondent-company on the ground enumerated in Section 433(c) of the Companies Act.

The Respondent No. 2 in the present proceeding has filed an affidavit wherein it has been contended that the Respondent No. 2 did not, at any point of time, hold the office of the Managing Director of the respondent-company. According to the Respondent No. 2, the petitioners themselves being the promoters, are responsible for the failure of the respondent-company to commence its business and no blame in this regard can be attributed to the respondent No. 2. In the affidavit filed, the respondent No. 2 has however, not opposed the winding up of the respondent-company.

From the averments made in the company petition filed and also from the affidavit lodged on behalf of the respondent No. 2, it is evident that both the petitioners as well as the respondent No. 2 were the promoters of the respondent-company and are equally responsible for the failure of the respondent-company to commence its business in the company petition filed as well as in the affidavit lodged by the respondent No. 2, though no cogent explanation has been offered for the failure of the respondent-company to commence its business after incorporation, what clearly appeals from the averments made, is that the respondent-company after being incorporated in the year 1992 did not undertake any business at all. In fact, the shares of the promoters itself were not paid for and no contributions were made to the share capital account of the respondent-company. Not a single meeting of the Board of Directors took place and no statutory returns were filed with the jurisdictional Registrar of Companies. In view of the above position, hardly any useful purpose will be served to allow the company to remain alive on record. The respondent-company not having commenced any business whatsoever till date after its incorporation in the year 1992, this court is of the considered view that it would be just and proper to wind up the respondent-company. A copy of this order be furnished to the Registrar of Companies/Official Liquidator to initiate necessary action in accordance with law in the light of the directions contained in the present order.

The company petition stands closed.