M.K. Shrawat, Member - (1.) This Petition is filed on 31st May 2017 by invoking the provisions of the Section 271 of the companies Art 2013, seeking an order to wind up the Respondent Company which was incorporated on 6th June 2013 having paid-up capital of Rs. 1 lakh by issuing 10000 shares for a face value of Rs. 10/-, subscribed equally by two Directors viz. Mr. Brijkishor Kishangopal Soni and Mr. Vincent Francis Eckerman. The Petitioner was earlier stated to be in the business of eco-recycling and consultation in the field of Environmental Assessment, known as Ecoreco. It is claimed in the Petition that the said Company was a leading Company in e-waste management. The said Company was a Private Limited Company and providing integrated solution for e-waste management to some of the MNCs, Corporate Bodies, Original equipment manufacturer, etc. Mr. Vincent Francis Eckerman having 50% shareholding in the Respondent Company, represented AVC Weeco Limited, a Company incorporated under U.K. laws having its address at William Street, Wales, U.K. On persuasion by Mr. Vincent it was suggested that a joint-venture in India in the field of e-waste management be executed. Therefore, on 6th June 2013 both the parties have joined hands and the Respondent Company was incorporated. .- 1.1 It is interesting to note that since incorporation no business has been done by the Respondent Company. However, due to change of climate Ministry of Environment vide notification on 23rd March 2016 made it mandatory for producers of e-waste either not to produce or recycle the waste. Around that time Mr. Vincent representing AVC Weeeco Limited had mooted a suggestion that the entire shareholding be transferred to an offshore holding Company known as WeeePRO Jersey Limited. It was also proposed that the shareholding would be divided equally amongst the Petitioner and AVC. The Petitioner and Mr. Vincent (representing AVC) held a meeting on 21st January 2017 to discuss the said proposal, however, the Petitioner suspected that the AVC had no longer wanted to do any business through Respondent Company, but to conduct its operation in India through its wholly owned subsidiary. After the said Meeting the Petitioner received an email dated 23rd January 2017 that if the Respondent Company unable to get business, then the parties could consider to close down the Respondent Company. The Petitioner met Mr. Vincent on 27th January 2017 for further course of action so as to start business operations. However, it was again expressed that the said proposal of introduction of WeeePRO Jersey Limited was to be carried out and then only business could be started. Later on it was also communicated that they were considering doing business in India on their own and not through Respondent Company. The allegation of the Petitioner is that it had come to his notice that AVC had incorporated one more Company by using the same brand name. On 31st January 2017 Petitioner received one email from Mr. Vincent raising certain accusations of impropriety against the Petitioner. It was also communicated that they have informed CEAMA and ELCOMA that they were no longer associated with the Petitioner or the Respondent Company. 1.2 Due to the aforementioned reason and also due to certain other developments thereafter, it was noticed that the AVC had acted in contravention of its contractual obligation. There was no Meeting of the Shareholders to do any business through Respondent Company. As per the documents on record of the last two financial years i.e. 2014-15 and 2015-16, there was no business conducted. The Company had become defunct due to non-operational. There was a dead-lock in its management. Since both the Directors were also shareholders having equal shareholding, therefore, no Resolution was passed and no Meeting was conducted. Due to the dead-lock, the Company was unable to perform statutory obligations under Companies Act 2013. Because of the said reason this Petition is moved to wind up the Company. A relief is sought in this Petition that it would be just and equitable if the Company be allowed to wind up under section 271(e) by appointing a Liquidator as prescribed under the provisions of Companies Act 2013. 1.3 In the light of the above factual matrix heard Learned Advocate Mr. Parsiwalla who has explained the latest position of law that due to the introduction of Insolvency and Bankruptcy Code 2016 the provisions of section 271 are amended. According to him due to the introduction of I&B Code therein section 255 is brought into force vide notification issued by MCA dated 15-11-2016 bearing Reference No. 5.0.3453(E) . It is pleaded that as per the amended provisions if the Tribunal is of the opinion that it is just and equitable that the Company should be wound up, then an Order can be passed accordingly. However, it is mandatory to appoint a Liquidator under section 275 of the Companies Act 2013 and name suggested is Ms. Reema Mathias as a Company Liquidator under section 275(2) of the said Act, as she is a registered insolvency professional registered under the relevant regulations, bearing registration number IBBI/IPA-002/IP-N00337/2017-2018/10941. In support, case laws cited are: "(a) Hind Overseas Private Limited v. Raahunath Prasad Jhunihunwala & Anr,1976 3 SCC 25 (b) Draeaerwerk Aktienaesellschaft v. M/s. Usha Draaer Private Limited & Anr,2006 2 ILR(Del) 1241"
(2.) On hearing the submissions in the light of the facts of the case and also on perusal of the evidences annexed in the compilation, we are of the conscientious view that it is just and equitable to order for winding up of the Respondent Company viz. WEE India Private Limited [CIN:U37200MH2013PTC244079], having registered office at 205, Centre Point, 2nd Floor, J.B. Nagar, Andheri - Kurla Road, Andheri (East) , Mumbai - 400 059. 2.1 Factual matrix of the case discussed hereinabove have clearly demonstrated that due to non-cooperation and unwillingness of one of the Directors viz. Mr. Vincent Francis Eckerman the Meetings could not be held and since inception no business was conducted by the Company. The Petitioner Mr. Brijkishor Kishangopal Soni is the other Director holding 50% shares, however, unable to perform the statutory obligations because the other Director who is also holding rest 50% shareholding had put certain conditions which were not agreeable to the Petitioner. As a result, there was a total dead-lock in holding Meetings as also in conducting the business. The provisions of the Companies Act have taken care of such stalemate by prescribing section 271 under the Act. 2.2 Before we discuss the latest provisions of section 271 of the Companies Act 2013 it is worth to put on record that the Insolvency & Bankruptcy Code came into operation due to which a corresponding amendment under section 271 of the Companies Act 2013 took place. In the I&B Code 2016, section 255 is introduced enforceable with effect from 15-11-2016 vide S.O. 3453(E) due to which it is prescribed to amend certain provisions of the Companies Act. 2.3 For the sake of clarity, we have compared section 271 as it was originally placed in the Companies Act; with the amended provisions and thereafter noticed that most of the sub-sections have been repeated except those provisions where it is prescribed that if a Company is unable to pay its Debts is within the ambits of winding up provisions. We have also noticed that in the old Section there was a provision of winding up if a Company is defaulter and proceedings were initiated under Chapter-XIX, i.e. Rehabilitation of Sick Companies. According to us it was a statutory requirement because of the reason that once the I&B Code is in operation then the question of inability to pay the Debts or the possibility of rehabilitation have come within the domain of the I&B Code, therefore, identical provisions are not required in another Act. Naturally, the Legislature do not prescribe duplicity of a provision. v. - 2.4 Finally, it is hereby concluded that considering the totality of the facts and the circumstances of the case as discussed in detail in foregoing paragraphs, as well as after due consideration of the amended provisions of the Act, in our considered opinion it is just and equitable that the Respondent Company should be ordered to be wound up. The name of the Interim Liquidator as proposed by the Petitioner is hereby approved to start the requisite process. 2.5 Petition allowed. To be consigned to Records.;