Rajasthan High Court – Jodhpur
Satyadev And Ors vs Guru Shikhar Saving And Finance Ltd.And … on 10 December, 2024
[2024:RJ-JD:50539]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Company Petition No. 9/1998
Satya Dev Sharma
----Petitioner
Versus
Gurushikhar Savings And Finance India Ltd
----Respondent
Connected With
S.B. Company Petition No. 10/1998
Satyadev Sharma And Ors
----Petitioner
Versus
Gurushikhar Savings And Investment Ltd
----Respondent
Connected With
S.B. Misc. Application No. 57/2009, S.B. Misc. Application No.
89/2009, S.B. Misc. Application No. 90/2009, S.B. Misc.
Application No. 91/2009, S.B. Misc. Application No. 2/2010, S.B.
Misc. Application No. 3/2010, S.B. Misc. Application No. 4/2010,
S.B. Misc. Application No. 104/2011, S.B. Misc. Application No.
105/2011, S.B. Misc. Application No. 106/2011, S.B. Misc.
Application No. 107/2011, S.B. Misc. Application No. 98/2012,
S.B. Misc. Application No. 99/2012, S.B. Misc. Application No.
100/2012, S.B. Misc. Application No. 101/2012, S.B. Misc.
Application No. 102/2012, S.B. Misc. Application No. 103/2012,
S.B. Misc. Application No. 104/2012, S.B. Misc. Application No.
107/2012, S.B. Company Application No. 6/2015.
For Petitioner(s) : Mr. Sheetal Kumbhat
Mr. H.R. Soni
Mr. Jitendra Choudhary
Mr. Dixit Panwar
Mr. Anil Bhandari
Mr. D.S. Sodha
Mr. K.C. Sharma
Mr. Rajesh Choudhary
For Respondent(s) : Mr. Sanjeev Johari, Sr. Adv. Assisted
by Mr. Shubhankar Johari
Mr. Vinay Jain
Mr. Darshan Jain
Mr. J.K. Mishra
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
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[2024:RJ-JD:50539] (2 of 8) [COP-9/1998]
10/12/2024
1. Petitions in hand were filed way back in the year 1998 by the
then Directors (petitioners herein) of the companies namely
Gurushikhar Savings & Finance (India) Ltd. and Gurushikhar
Savings and Investment (India) Ltd. They sought voluntary
winding up of both the companies under the supervision of the
Court as per Sections 425/439 of the Companies Act, 1956.
2. Order dated 16.12.2008, being relevant, passed by a
Coordinate Bench of this Court is as follows:-
“This winding up petition has been filed by Satya Dev Sharma and
Smt. Santosh w/o Shri Satya Dev Sharma who are the Directors of
the respondent-Company, namely, Gurusikhar Savings and Finance
(India) Ltd. (herein after referred to as “the Company”), which was
incorporated in the month of August, 1994 under the Indian
Companies Act, 1956 as a public company limited by shares having
its registration No. 17-08692. The petition was submitted in this
Court as back as on 9.3.1998. Notices were issued which were
served upon the respondents and notice in the news-paper Dainik
Bhaskar was also published. Neither the company nor any body on
behalf of the company, share holders, employees, creditors or
persons interested in the affairs of the company has opposed the
winding up of the company.
As per the facts mentioned in the Company Petition, the share
capital shown in the Memorandum and Articles of Association was
Rs. 50,00,000/- divided into 50,000 equity shares of Rs.100/- each.
At the time of filing of the petition, the amount of capital paid or
credited as paid up is Rs.43,20,000/- minus Rs.20,00,000/- which
was refunded back, making it Rs.23,20,000/-. At the time of
incorporation of the company, there were seven share holders, out
of which two are the petitioners and five have been impleaded as
non-petitioners no.1/1 to 1/5. The petitioners alleged that the
business of the company has came to an end and several criminal
cases have already been filed which includes the loading of FIR by
the petitioner no.1 on 22.6.1997 bearing CR No.245/97 in Police
Station, Kotwali at Pali. It has been alleged that the company’s
several agents, some of whom have been named in sub-para (1) of
para 7 of the petition, took deposit from the public in the name of
the company but they did not deposit the amount in the company.
When those persons were asked to deposit the amount in the
company by petitioner no.1, then he was kidnapped and was
wrongfully confined in a house and was given severe beating and
signature of non-petitioner no.1 was obtained by these persons on
stamp paper, for which report was lodged by him and it is also
submitted that even case under Section 420, IPC was registered
against the petitioner on direction issued by the Chief Judicial
Magistrate, Pali. There was a petition under Section 482, Cr.P.C.
filed by petitioner no.1 which was accepted in part by this Court
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vide judgment dated 8.12.1997. Be it as it may be, as per the
averment made in the petition, a criminal case (CR No.162/97) at
Police Station, Sojat City under Sections 406 and 420 IPC with
Section 138 of the Negotiable Instruments Act and other criminal
cases, CR No.201/97 at Police Station Sojat City under Sections
406, 420 and 120B IPC, Criminal complaint CR No.202/97 at
Police Station, Sojat under Sections 420, 406, 120B, 467, 471 and
Criminal Case CR No.203/97 and another CR No.204/97 also have
been registered. Not only this, on the application of the police,
submitted in criminal case, the Chief Judicial Magistrate, Pali
passed order on 20.11.1997 for attachment of the properties of the
company as well as for its sister companies. It is also submitted that
that order was passed without notice to the company. With these
facts, it has been stated that the obstruction has been occurred in
managing the business of the company and it has become not only
difficult but impossible to run and manage the business of the
company as the company is in loss and insolvency is inevitable.
During pendency of this company petition, an application was
submitted by 14 applicants for being impleaded as party with the
allegation that they have invested their money in the company and
they gave detail of their money paid by check to the company. These
applicants were impleaded as party-petitioners by order dated
27.4.2000. Newly added petitioners submitted additional ground for
winding up of the company on 9.5.2000.
On 22.11.2002, this Court with the consent of the parties, directed
the official liquidator to take charge of the company temporarily for
the purpose of making investigation into the affairs of the company.
The official liquidator by order dated 22.11.2002 itself advised to
report to the Registrar of the Companies that it has come to the
notice of the court from submissions of the learned counsel for the
petitioners that the company is not functioning properly, obviously,
for the purpose of taking appropriate action in accordance with law.
On 19.5.2007, this Court finding that in criminal proceedings, the
order has been passed by the court of Chief Judicial Magistrate,
Pali, obviously of attachment of the properties of the company,
directed the parties as well as the official liquidator to appraise the
Court that the High Court has already ordered for investigation in
the affairs of the company through official liquidator. The official
liquidator could not got the books of account of the company even
after passing of the several orders and it appears from the facts
mentioned above that the business of the respondent-company is not
running since last more than 10 years and there was huge liability
of the company and there is no possibility of the revival of the
company as no body is interested in revival of the company.
Therefore, this Court is of the view that it is just and proper to order
winding up of the company.
Consequently, I make an order for winding up of the company and
intimation of making of an order for winding up of the company be
sent forthwith to the official liquidator and the Registrar of the
Companies.
The Company Petition is allowed accordingly.”
3. Perusal of the Court orders passed from time to time and the
various affidavits / pleadings reflects that, ever since filing of the
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petitions, much water has flown below the bridge. At this stage, it
transpires that vide an order dated 15.02.2022 passed by
Coordinate Bench of this Court, the Official Liquidator was directed
to dispose of two of the immovable properties of the companies in
order to settle the surviving claims of its creditors before taking
any further steps. The said order, being apposite, is reproduced
hereinbelow-
“In wake of instant surge in COVID-19 cases and spread of its
highly infectious Omicron variant, abundant caution is being maintained,
while hearing the matters in Court, for the safety of all concerned.
This Court had passed the following order on 15.12.2021:
“Learned counsel for the Directors fairly submits that for any
modus-operandi to be arrived at for clearing the dues of the creditor,
the Directors are prepared to work under the supervision of the
Official Liquidity.
The Director- Satyadev Sharma and Official Liquidator are
directed to conduct a meeting to discuss and asses the possibilities of
ways and means to clear the dues of the creditors. Depending upon a
preliminary assessment and a minimum common agreement between
the Director-Satyadev Sharma to the satisfaction of the Official
Liquidator, the Court shall pass the order on the next.
The Director-Satyadev Sharma and Official Liquidator shall
meet on 20.12.2021. They can mutually decide for further meeting, if
required before the next date.
List on 10.01.2022.”
Counsel for the Ex-Director Mr. Satyadev Sharma and the Official
Liquidator were directed by this Court to conduct a meeting to discuss and
assess the possibilities of ways and means to clear the dues of depositors
and creditors of both the companies.
Mr. H.R. Soni alongwith the counsels inform this Court that a
formal meeting took place between both the parties and Director on
17.12.2021 and 28.12.2021. The minutes of the aforesaid meetings have
been recorded and reads as follows:
“Minutes of meeting dated 17/12/2021 and 28/12/2021 held between
Shri Satyadev sharma and Official Liquidator pursuant to direction
of Hon’ble High Court of Rajasthan vide order dated 15.12.2021.
Hon’ble Court vide order dated 15.12.2021 passed in S.B. Company
Petition No.9/1988 (Gurushikhar Savings & Finance (India) Ltd.) &
S.B. Company Petition No.10/1988 (Gurushikhar Savings &
Investment (India) Ltd.) has directed to Official Liquidator and ex-
director Shri Satyadev Sharma to conduct a meeting to discuss and
access the possibilities of ways and means to clear the dues of the
depositors/creditors of the both companies.
As per the order dated 15.12.2021 passed by Hon’ble High Court, a
meeting was organized in the chamber of Official Liquidator
between Shri Satyadev Sharma and Official Liquidator to(Downloaded on 27/12/2024 at 10:21:23 PM)
[2024:RJ-JD:50539] (5 of 8) [COP-9/1998]ascertained the liabilities and repayment thereof and the following
points were discussed in the meeting to place before the Hon’ble
High Court for further order:-
1. Shri Satyadev Sharma has informed that there are approx.
1500 depositors/creditors in both the companies, whose dues
are pending for repayments and out of which only Approx.
450 depositors/creditors has made claim for the repayment.
Shri Satyadev Sharma has proposed to sale following two
fixed assets of M/s. Gurushikhar Savings & Finance (India)
Limited by which all the liabilities of both the companies can
be repaid.
A. Commercial Building, Chandpol Gate, Sojat City,
District Pali.
B. One Plot, Delhi Darwaja, PWD Road, Sojat Citi,
Dist. Pali (In which the Hon’ble Court vide order
dated 05/08/2010 has cancelled the claim of shri
Nemichand in Company Application No.66/09
Nemichand Vs. Dist. Collector).
2. The above properties may be valued by the Govt. approved
valuer and modus of sale be auction through public notice.
3. It is also proposed to publish advertisement in English and
hindi language newspapers in Rajasthan having well
circulation to invite the claims from the remaining depositors/
creditors.
4. The Expenditure of said publication and valuation of
properties should be paid from various company fund (VCF)
managed by Official Liquidator and adjusted from the
proceeds received from the sale of properties/plots of
company.
5. That the Office of the Official Liquidator has acute
shortage of staff, therefore it is proposed to appoint on clerk
cum typist @ Rs.12,000 to Rs.15,000 per month for the work
of these companies. His salary can be paid through also
various companies fund (VCF) and recoverable from the
funds of these companies.
6. The Site visit for verification of all properties of both
companies to ascertain the actual position of the properties
may kindly be permitted and travelling expenses will be born
by the O/o. Official Liquidator form the T.A. Fund.
In view of the action proposed and mutually decided by the Official
Liquidator and ex-director Shri Satyadev Sharma of the companies
in para no 2 to 6 be approved so the further necessary action be
taken in the matter by the Official Liquidator.”
In light of the aforesaid development, the Official Liquidator is
directed to proceed in accordance with the minutes in time bound manner.
The Schedule for such process to be adopted by Official Liquidator while
taking learned counsel Mr. H.R. Soni, into confidence shall be brought on
record before this Court by next date. The schedule for the actions to be
taken in accordance with the aforequoted meeting shall be furnished before
next date.
List the matters on 25.02.2022.”
4. Apropos, it turns out that the properties were sold. The sale
proceeds amounting to Rs. 2,65,00,000/- (Rs. Two Crore and
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[2024:RJ-JD:50539] (6 of 8) [COP-9/1998]
Sixty Five Lakhs) kept in Fixed Deposit as per Rule 293 of the
Companies Court Rules, 1959. The said money was to be utilized
for disbursement of the valid claims of the creditors after carrying
out due verification by the Official Liquidator. Matter was earlier
heard by me on 20.05.2024 when following order was passed:-
“1. List on 11.07.2024.
2. In the meanwhile, Official Liquidator to file an affidavit stating
the total amount of sale consideration received against the sale of two
properties of the company vis-a-vis the total liability of the various
creditors/depositors of the company. After carrying out the
calculations, it be mentioned therein if any other property of the
company is required to be sold.
3. Learned counsel appearing for the company states that the
amount lying in the bank account of the company is sufficient to meet
the liability.
4. Be that as it may, aforesaid position be clarified in the affidavit
proposed to be filed by Official Liquidator.
5. The necessary calculation of the liability be done alongwith
interest at the rate of 4% per annum in terms of the order passed by a
Division Bench of this Court in Virendra Mal Bhandari Vs. Mewar
Textile Mills Limited. : D.B. Special Appeal (Civil) No.1/2019.”
5. Pursuant to the aforesaid order, an affidavit of the Official
Liquidator has been filed, wherein following unambiguous stand
has been taken:-
“2. That, the Official Liquidator had incurred various liquidation expenses
for the period from 16.12.2008 i.e. date of appointment of Official
Liquidator as Liquidator of the company till disposal of the above two
assets of the company, Thereafter, after deducting the expenses incurred by
the Official Liquidator, an amount of Rs.2,65,00,000/- has been invested in
Bank by way of Fixed Deposit Receipt in accordance with Rule 293 of the
Companies (Court) Rules, 1959.
Sr. Description Nos. of Claim Amount
claimants
1. Consideration of Plot / Fixed Depositors / 174 5,60,72,790/-
Recurring Depositors
3. That, the Official Liquidator most respectfully submits that the
claims so received by the Official Liquidator were examined and verified
by the Official Liquidator in accordance Rule 159 of the Companies
(Court) Rules, 1959 and the claims were accepted / rejected in accordance
with Rule 163 of the Companies (Court) Rules, 1959. The details of claims
accepted / rejected by the Official Liquidator upon examination /
verification of the claims so received are as under:-
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Sr. Description Nos. of claimants Admitted Claim
Amount
1. Admitted claims 106 1,24,40,844/-
2. Rejected claims 68 1,13,57,387/-
A copy of the list showing the details of the claimants, amount
claimed, amount rejected, admitted amount is annexed herewith and
marked as Annexure “A”.
4. That, the Official Liquidator most respectfully submits that the
Official Liquidator is required to make payment to the claimants whose
claims are admitted upon examination of the claim. In this regard, it is
submitted that, in all, claims of 106 claimants has been admitted
amounting to Rs.1,24,40,844/- by the Official Liquidator.”
6. Perusal of the above, clearly reflects that as on today, there
are no undealt surviving claims of any of the creditors or the
petitioners. However, even if there were any claims, the Official
Liquidator is at liberty to process the same in accordance with law
and if found genuine and valid, the same can be settled from the
surplus money which is lying in the Fixed Deposits as per the
Company Rules ibid.
7. As regards the winding up of the companies on voluntary
grounds, the same, at this stage, is not being pressed by the
petitioners. Learned counsel representing them submits that due
to changed circumstances, the original Directors of the companies
have decided to take over the assets of the companies which are
left over after selling the aforesaid two properties and take
appropriate steps to manage and operate the companies.
8. In view of the aforesaid, the original orders dated
16.12.2008 passed in both the petitions by Coordinate Bench of
this Court at the request of the petitioners for voluntary winding
up are recalled. The Official Liquidator shall keep the surplus funds
for a period of 6 months in the FD and within the said period, if
any claimant submit their fresh claim, the same shall be dealt with
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[2024:RJ-JD:50539] (8 of 8) [COP-9/1998]
as already noted hereinabove. If found genuine, appropriate steps
shall be taken to disburse the money which is found legitimately
due.
9. After expiry of 6 months, the Directors of the companies
shall be at liberty to seek refund of the surplus amount, which
shall be electronically remitted to the bank accounts of the two
companies which owned two sold assets, details of which shall be
provided by the Directors.
10. With these observations, the petitions stand disposed of. All
other interim orders passed during the pendency of the
proceedings stand vacated and the applications filed from time to
time also stand disposed of as infructuous.
11. In the parting, I may hasten to add here that any rival claims
with regard to the properties of the companies are left open to be
adjudicated by filing appropriate civil proceedings in accordance
with law.
(ARUN MONGA),J
Item Nos. 201, 202, 203, 204, 205,
206, 207, 208, 209, 210, 211, 212,
213, 214, 215, 216, 217, 218, 219,
220, 221, 222.
-DhananjayS/-
Whether fit for reporting: Yes / No
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