M/s. Avani Mining Private Limited Vs

Rahul Bhatnagar, Member (Technical)

1. The present Application has been filed by Mr. Sunil Kumar Agrawal (Voluntary Liquidator of M/s. Avani Mining Private Limited) before this Adjudicating Authority under Section 59(7) of the Insolvency & Bankruptcy Code, 2016 (“IBC” or “the Code”) read with Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017, (“Voluntary Liquidation Regulations”).

2. Brief Background of the Applicant Company:

The Applicant Company was incorporated on 09.01.2007, as a Company Limited by Shares (Non-Govt. Company) having CIN: U10300DL2007PTC157593, under the Companies Act, 1956 with the Registrar of Companies, NCT of Delhi and Haryana. The Authorised Share Capital of the Applicant Company as on the Voluntary Liquidation Commencement date was Rs. 10,00,00,000/-(Rupees Ten Crore Only) divided into 1,00,00,000 equity shares of Rs. 10/- each. The Issued and Paid-up Share Capital of the Applicant Company as on the Voluntary Liquidation Commencement date was Rs. 3,39,79,060/- (Rupees Three Crore Thirty Nine Lakh Seventy Nine Thousand Sixty Only) divided into 33,97,906 equity shares of Rs. 10/- each. The Registered Office Address of the Applicant Company is 129, Transport Centre, Rohtak Road, Punjabi Bagh, Delhi-110035. Therefore, this Bench has jurisdiction to deal with this application.

3. The  main  objects  of  the  Applicant  Company  as  set  out  in  the Memorandum of Association (“MoA”) are as follows:

“(a) To undertake prospective work of coal mining and sale of coal, selecting suitable coal blocks/sub blocks for grant of prospective license and mining lease, development of coal block (s) including drilling, feasibility studies and assessment of mine block (s), mining, survey and preparation of coal mine plans, to raise, stock and dispatch coal, to mine coal either in open cast process or underground process.

(b) To implement, operate, produce, handle including screening and sizing transport and supply of coal from the coal mine(s) and to carry on all or any of the business of transport, cartage, and haulage contractors, garage proprietors, owners and characters of road vehicles of every description, carriers of goods from place to place by road, rail, water carrier, animal drawn vehicles, and cartage contractors and agents or in any other manner what so ever to carry on all or any of the following business i.e., general carriers, transporters, railway ad forwarding agents, warehousemen, storekeepers, bonded caremen, common caremen and earthmoving works for any type of construction works.

(c) To install and operate coal benefication plant (s) at suitable places and to undertake all other acts related to the activity as such.

(d) To purchase, hold, acquire, mines, mining lease, mining licenses, mining rights, mining claims and metalliferous lands and to explore, search, work, exercise, develop, treat, fine, beneficiate and to turn to account, ores, all sorts of major and minor minerals, working deposits of all kinds of minerals and sub-soil minerals viz. coal, lignite, iron ore, bauxite, manganese, silica, copper, tin, felspar, dolomite, nickel sulphur, gold, silver, diamond, chromium, rock, phosphate, manganese, quarts, mercury, kyanite, fire clay, calcium, beryllium, uranium, zinc, lead, asbestos, mica, platinum sapphire, ruby, topaz, garnet, emerald, and to crush, win set, quarry smelt, calcine, refine, dress, preserve, amalgamate, manufacture, manage, manipulate and prepare for market ore, metal and mineral substances of all kind and to carry on metallurgical operation in all its branches.

(e) To buy and sell, import, export, repair, assemble, supervise installation of, or otherwise deal in all types of mining machines, tools and implements, spare parts, tyres, allied parts, accessories, smelters, crushing machines, furnaces.”

A copy of Memorandum and Articles of Association and extract of Master data from MCA Website is filed along with the Application.

4. As on the Voluntary Liquidation Commencement date, the following persons were the directors of the Applicant Company:

5. Reason of Voluntary Liquidation:

The Applicant Company was incorporated on 9th January 2007 to carry on the business of providing facilities to companies carrying out Coal Mining. However, due to certain unforeseen circumstances, the Company could not continue its business activities in the long run. The Company is a compliant company and does the annual statutory filings with the RoC on a regular basis. Since the Company has not carried on business activities since year 2013, the Management thought fit to liquidate the Company voluntarily and consequently the Shareholders of the Company have unanimously resolved and approved the Voluntary Liquidation of the Company.

6. The board of directors of the Company on 13th March 2019 passed a Resolution for filing the declaration of solvency for Voluntary Liquidation of the Company in terms of Section 59(3) of IBC 2016 read with Regulation 3 of Voluntary Liquidation Regulations 2017 and for the appointment of Mr. Sunil Kumar Agrawal as Voluntary Liquidator of the Applicant Company in accordance with Regulation 5 of the Voluntary Liquidation Regulations, subject to the approval of the members in the Extra Ordinary General Meeting of the Company.

7. As required under Section 59(3)(a) of the Code read with Regulation 3 of Voluntary Liquidation Regulations 2017, the directors of the Company declared vide Declaration of Solvency dated 13th March 2019 stated that they have made full enquiry into the affairs of the Company and they have formed an opinion that the company has no debts and if claimed during Voluntary Liquidation process, the Company will be able to pay its debts/claims in full from the proceeds of the assets to be sold in the Voluntary Liquidation and that the company is not being liquidated to defraud any creditor, government, any other company, firm and any other person. The said declaration of solvency was accordingly filed with the RoC.

8. Further, the members (constituting 100%) of the Company had approved the Voluntary Liquidation of the Company and appointed Mr. Sunil Kumar Agrawal as the Voluntary Liquidator of the Company in their Extra-Ordinary General meeting held on 4th April 2019 ("Liquidation Commencement Date") of the Company. Copy of the extract of the Extra-Ordinary General meeting held on 4th April 2019 is filed along with the Application. In compliance of Regulation 3(2) of the Regulations, the resolution dated 4th April 2019 was duly notified to the office of the RoC and IBBI.

9. The public announcement was made by the Voluntary Liquidator on 8th April 2019 and 9th April 2019 in the newspapers namely Financial Express (English) and Jansatta (Hindi) covering the Delhi region. In terms of Regulation 14(3)(c) of Regulations, the public announcement in Form A was notified to IBBI for publishing on the website through email dated 16th April 2019. Further, in terms of Section 178 of the Income Tax Act, 1961, the Voluntary Liquidator vide letter dated 10th April 2019 intimated the Income Tax Officer regarding his appointment as Voluntary Liquidator of the Company.

10. In terms of Regulation 29 of the Regulations, the Voluntary Liquidator is required to verify the claims submitted within thirty days from the last date for receipt of claims and may either admit or reject the claim, in whole or in part. According to law and public announcement, the last date of submission of claims was 4th May 2019. The Voluntary Liquidator has not received any claim from the creditors till the date of filing of the present application pursuant to the public announcement made in accordance with Regulation 14 of Voluntary Liquidation Regulations 2017.

11. During the verification of books of the Company it came to the knowledge of Voluntary Liquidator that M/s. Sainik Mining and Allied Services Limited owes an amount of Rs. 3,84,28,430/- to the Company. The Voluntary Liquidator recovered the amount of Rs. 3,84,28,430/- from M/s. Sainik Mining and Allied Services Limited and distributed the said amount among the shareholders of the Company in proportion of their shareholding. Thereafter the Voluntary Liquidator prepared the receipts and payments accounts showing receipts and payments since the Voluntary Liquidation commencement date.

12. As required under Regulations, the Voluntary Liquidator opened a Bank account with the Bank of India (having A/c No. 604220110000217) for realization and payment to the creditors and Members. Thereafter, the Bank Account Closure Certificate is filed along with the Application.

13. In terms of Regulation 9 of the Voluntary Liquidation Regulations, the Voluntary Liquidator prepared the preliminary report along with the list of stakeholders and submitted the same to the Board of Directors of the Company. Further, in terms of Regulation 38 of the Voluntary Liquidation Regulations, upon completion of the Voluntary Liquidation process, the Voluntary Liquidator is required to prepare a Final Report consisting of details showing the receipts and payments pertaining to the Voluntary Liquidation since the Voluntary Liquidation Commencement Date. The Voluntary Liquidator has prepared the Final Report in compliance of the Voluntary Liquidation Regulations.

14. Upon the scrutiny of records, the Voluntary Liquidator is satisfied that the necessary compliances of Section 59 of the Code and other relevant Regulations of the Voluntary Liquidation Regulations, as applicable thereto have been made and the affairs of the Company have not been conducted in a manner prejudicial to the interest of its members or to the public interest and thus the company may be deemed to have been dissolved from the date of submission of this report to this Adjudicating Authority.

15. All the Compliances as per the Code and as per the Voluntary Liquidation Regulations have been complied with. The Affidavit showing compliance with the Code and compliance of the Voluntary Liquidation Regulation has been filed along with the application.

16. Report of the Registrar of Companies, NCT of Delhi and Haryana Dated 12.03.2021:

The report is filed in compliance of the order of this Adjudicating Authority dated 23.02.2021 on behalf of the Registrar of Companies, Delhi and the same are as follows:

i. As per the data available and maintained no inquiry/ inspection /complaint/legal action has been proceeded/ pending against the Applicant Company.

ii. This office has compiled the above factual report based on the records maintained and documents filed by the concerned Company on the MCA21 portal.

17. Analysis and Findings:

i. We have considered the submissions made by the Applicant Company and have also perused the material on record. It appears that the affairs of the Applicant Company have been completely wound up and its assets have been completely liquidated. No liabilities have been left unsatisfied. We are satisfied from the documents on record that the Voluntary Liquidation is not with the intent to defraud any person.

ii. The Final Report under Regulation 38 of the Voluntary Liquidation Regulations read with Section 59 of the Code stated that:-

(a) The Company does not have any Tangible Assets which was required to be disposed of and realized.

(b) There are no Secured Creditor and Un-secured Creditors of the Company as on the date of commencement of Voluntary Liquidation. Hence no claim from Secured Creditor and Un-secured Creditors was received.

(c) No litigation is pending against the Applicant Company.

(d) There are no existing liabilities or debt on the part of the Company (M/s. Avani Mining Private Limited).

(e) There are no inquiries, investigations or proceedings pending against the Company as on the Voluntary Liquidation Commencement Date or thereafter.

18. Order

i. In light of the above facts and circumstances, the Present Application stands allowed and the Applicant Company stands dissolved from the date of this Order.

No order as to costs.

ii. The Registry is directed to send the copies of the order forthwith to the Applicant Company represented by its Voluntary Liquidator and its Ld. Counsel for taking further necessary steps.

iii. The Voluntary Liquidator of the Applicant Company is further directed to serve a copy of this order upon the Registrar of Companies, NCT of Delhi and Haryana, immediately and, in any case, within fourteen days of receipt of this order.

The RoC shall take further necessary action upon receipt of a copy of this order.

iv. The Voluntary Liquidator is also directed to preserve a physical or electronic copy of the reports, registers and books of accounts referred to in Regulation 8 and Regulation 10 of the Voluntary Liquidation Regulations for at least 8 years as per Regulation 41 of the Voluntary Liquidation Regulations either with himself or with an information utility.

v. A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities.

vi. The Registry is further directed to send a copy of this order to the Insolvency and Bankruptcy Board of India for their record.