Case Law Details
Union of India Through Serious Fraud Investigation Office Vs MPS Greenery Developers Limited (NCLT Kolkata)
The National Company Law Tribunal (NCLT), Kolkata dismissed an interlocutory application seeking dismissal of a winding-up petition filed by the Union of India through the Serious Fraud Investigation Office (SFIO) under Sections 271 and 272 of the Companies Act, 2013. The applicant company had sought dismissal of the main company petition, a stay of further proceedings, and contended that the petition was not maintainable, alleging that no authority letter from the Central Government had been annexed, that the petition was barred by limitation, and that the SFIO lacked the power to initiate winding-up proceedings under the Companies Act.
The Union of India, through the SFIO, opposed the application and submitted that the authority letter issued by the Central Government had been annexed with the company petition. It further stated that, by an authority letter dated 18.05.2022, the Central Government had authorised the Senior Assistant Director, SFIO, to file the winding-up petition and related interlocutory applications. It was also submitted that the petition had been filed on 21.05.2022, and therefore was within the limitation period.
The Tribunal considered the issue of whether the Union of India through the SFIO could file a winding-up petition under Sections 271 and 272 of the Companies Act, 2013. It examined Section 224(2) of the Companies Act, which permits the Central Government, on the basis of an investigation report, to cause a winding-up petition to be presented before the Tribunal through any person authorised by the Central Government. The Tribunal also referred to Section 272(1)(e), which specifically provides that any person authorised by the Central Government may present a petition for the winding up of a company.
On a combined reading of Sections 224(2) and 272(1)(e), the Tribunal held that the respondent was competent to file the winding-up petition. It noted that the Central Government had, through the authority letter dated 18.05.2022, expressly authorised the Senior Assistant Director, SFIO, to file the winding-up petition and necessary interlocutory applications against the applicant company. Consequently, the Tribunal concluded that the respondent had the authority to institute proceedings under Sections 271 and 272 of the Companies Act, 2013.
Accordingly, the Tribunal dismissed I.A. No. 204/KB/2023, thereby rejecting the applicant company’s challenge to the maintainability of the winding-up petition.
FULL TEXT OF THE NCLT JUDGMENT/ORDER
1. The present Application has been filed in C.P 309/KB/2022. This interlocutory application seeks the following reliefs:
a) Dismiss the C.P No 309/KB/2022 in limine.
b) Stay all the proceeding in the C.P 309/KB/2022 till disposal of the this Application.
2. Brief Fact of C.P 309/KB/2022
2.1 The Union Of India through Serious fraud investigation office (Petitioner) has filed petition under section 271-272 of the Companies Act, 2013 against the MPS Greenery Developers Limited (Respondent Company).
3. A (companies act) 204/KB/2023
3.1 The Applicant (“MPS Greenery Developer Limited”) submitted that the respondent petition filed under section 271-272 (C.P 309/KB/2022) is not maintainable on the following grounds:
a) petitioner has not annexed any authority letter from central government for filing the petition under section 271-272.
b) The Petition is barred by limitation.
c) Respondent does not have the power to initiate winding up proceedings under section 271-272 of the Companies Act, 2013.
4. Submission of the Respondent
4.1 The Respondent denied the allegations made by the applicant and made the following submissions:
a. The Respondent (“Union Of India through Serious Fraud Investigation Office”) submitted that it has annexed authority letter from the Central Government at page 53 of the C.P 309/KB/2022.
b. The Respondent further submitted that by authority letter dated 18.05.2022, the Central Government has authorised the Sr. Assistant Director serious fraud investigation office for filing winding up petition and other interlocutory application against the applicant and the present application has been filed in 21.05.2022. Hence the company Petition C.P 309/KB/2022 is within the limitation period.
5. Analysis and Finding
5.1 Heard Learned Counsel of the parties. From the submission of learned counsel for the parties and materials on record following issues arise for consideration:
Whether the union of India through Serious fraud investigation office can file winding up Petition under section 271-272 of the Companies Act, 2013?
5.2 It is admitted fact that the Respondent herein has filed winding up Petition under section 271-272 of the Companies Act, 2013 against the applicant and the said petition is numbered as C.P 309/KB/2022.
5.3 From the perusal of the section 224(2) of the Companies Act, 2013 it is clear that the Respondent can file petition for winding up. The relevant extract of section 224(2) of the Companies Act, 2013 is incorporated herein:
“If any company or other body corporate is liable to be wound up under this Act or under the Insolvency and Bankruptcy Code, 2016 and it appears to the Central Government from any such report made under section 223 that it is expedient so to do by reason of any such circumstances as are referred to in section 213, the Central Government may, unless the company or body corporate is already being wound up by the Tribunal , cause to be presented to the Tribunal by any person authorised by the Central Government in this behalf –
i. a petition for the winding up of the company or body corporate on the ground that it is just and equitable that it should be wound up;
ii. an application under section 241; or
iii. both.”
5.4 It is also relevant to note that as per section 272 (1)(e) any person authorised by Central Government can file winding up petition. The relevant extract of section 272(1)(e) is incorporated herein:
“Section 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.”
5.4 Thus, upon combined reading of section 224(2) and section 272(1)(e) of the Companies Act, 2013, it is clear that Respondent can file winding up petition against the applicant.
5.5 In the present case, the central government has authorised Sr. Assistant Director serious fraud investigation office for filing winding and other necessary interlocutory Application through the authority letter dated 18.05.2022. In view of the above it is clear that the respondent can file winding up petition under section 271-272 of the Companies act, 2013 against the applicant.
5.6 In the aforesaid backdrop the, I.A No. 204/KB/2023 stands dismissed.
5.7 Certified copy of this order, if applied for with the Registry be supplied to the parties in compliance with all requisite formalities.
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