1995 (12) TMI 277 - HC - Companies Law

Winding up Circumstances in which a company may be would up, Company when deemed unable to pay its debts

Summary

Issues Involved:
1. Winding up of the company on just and equitable grounds under Section 433(1)(f) of the Companies Act, 1956.
2. Appointment of an official liquidator as the provisional liquidator.
3. Mismanagement and misconduct allegations against the majority shareholders.
4. Applicability of partnership principles to the company.
5. Alternative remedies under Sections 397 and 398 of the Companies Act.
6. Admissibility of the winding-up petition.

Detailed Analysis:

1. Winding up of the Company on Just and Equitable Grounds:
The petitioners, holding 35.7% shares in Saraya Sugar Mills Ltd., sought the company's winding up under Section 433(1)(f) of the Companies Act, 1956, claiming it was just and equitable. They alleged that the majority shareholders, specifically respondent No. 2, committed defalcation, misappropriation, and oppression, leading to a loss of mutual trust and confidence among shareholders. The court noted that the petitioners had previously reached an amicable settlement through a Memorandum of Understanding (MoU) in 1986, which was later disregarded by the majority shareholders.

2. Appointment of an Official Liquidator:
The petitioners also requested the appointment of an official liquidator to take charge of the company's assets. The court issued an ex parte interim order restraining the company from issuing further equity shares or creating additional liabilities. However, respondents argued that the petition was based on distorted facts and unfounded allegations, and the company was making profits under the current management.

3. Mismanagement and Misconduct Allegations:
The petitioners accused respondent No. 2 of selling company land without board approval, diverting molasses to his distillery, employing distillery staff in the company, maintaining inaccurate accounts, and treating the company as his private business. Respondent No. 3 supported these allegations, claiming large-scale illegalities and loss of crores of rupees to the company. The court noted that these allegations, if true, could justify winding up on just and equitable grounds.

4. Applicability of Partnership Principles:
The petitioners argued that the company, though a public limited company, operated like a partnership among Majithia family members. The court examined the articles of association and the 1972 arbitration award, concluding that the company did not retain partnership principles after incorporation. The award had partitioned the family businesses, and the shareholding structure did not indicate a partnership. Thus, the partnership principle was not applicable.

5. Alternative Remedies under Sections 397 and 398:
The court considered whether the petitioners had alternative remedies under Sections 397 and 398 of the Companies Act, which address oppression and mismanagement. It noted that the petitioners' allegations of mismanagement and oppression could be addressed under these sections. The court referred to the Gujarat High Court's decision in Atul Drug House Limited, emphasizing that winding up should be a last resort when other remedies are ineffective.

6. Admissibility of the Winding-up Petition:
The court assessed whether the petition should be admitted based on prima facie evidence. It noted that the petitioners had not attempted to resolve their grievances through the company's domestic forum or annual general meetings. The court emphasized that winding up a profitable company would harm shareholders and other stakeholders. It concluded that the petitioners had alternative remedies and were acting unreasonably in seeking winding up without pursuing those remedies.

Conclusion:
The court dismissed the winding-up petition with costs, emphasizing that the petitioners had not demonstrated that winding up was the only remedy. It clarified that its observations should not influence any future proceedings under Sections 397 and 398 or other appropriate forums.