1938 (8) TMI 16 - HC - Companies Law

Right to present winding-up petition where company is being wound-up voluntarily or subject to courts supervision

Summary

Issues: Application for compulsory winding up of a company in voluntary liquidation, interpretation of Section 218 of the Companies Act, rights of creditors in voluntary winding up, necessity of company's presence in winding up proceedings, amendment of application to include the company as a party.

Analysis:
The judgment pertains to an application seeking the compulsory winding up of a company, New Vaish and Paliwal Ginning and Cotton Press Company, Ltd., currently undergoing voluntary liquidation. The applicants, represented by B. Shri Gopal Chandra and L. Panna Lal, requested that certain mortgagees deliver possession of the company's property to the liquidator and sought a stay on sale proceedings in a related suit. The primary contention revolved around the interpretation of Section 218 of the Companies Act, which addresses the rights of creditors in winding up proceedings. The applicants argued that any creditor could demand compulsory winding up if the company is undergoing voluntary liquidation. However, the judge clarified that a creditor does not have an absolute right to convert voluntary winding up into compulsory winding up. The section allows creditors with a right to demand compulsory winding up to exercise that right even during voluntary liquidation.

Furthermore, the judgment highlighted the necessity of the company's presence in the winding up proceedings. The court emphasized that the company was the essential party in such cases, and the presence of other parties, such as mortgagees and directors, was deemed unnecessary. The judge dismissed the application as the company was not a party to the proceedings, rendering it impossible to adjudicate on the merits. The judge also addressed the request to amend the application to include the company as a party, emphasizing that such a significant change could not be allowed at that stage. The applicants were advised to initiate fresh proceedings against the company if they intended to pursue the conversion of voluntary winding up into compulsory winding up.

In conclusion, the application for compulsory winding up was dismissed, and costs were awarded to certain opposite parties. The stay order on related court proceedings was discharged, and documents from the Registrar of Joint Stock Companies were to be returned. The judgment underscored the procedural and substantive requirements in winding up applications, emphasizing the importance of the company's presence and the rights of creditors under the Companies Act.