1971 (12) TMI 89 - HC - Companies Law

Winding up - Company when deemed unable to pay its debts,Adjournment of winding up petition, Advertisement of petition

Summary

Issues Involved:

1. Whether the company is unable to pay its debts.
2. Whether it is just and equitable to wind up the company due to loss of confidence in the management.
3. The impact of delay in hearing the petition.
4. The potential hardship caused by advertising the winding-up petition.

Detailed Analysis:

1. Whether the company is unable to pay its debts:

The petitioners argue that the company should be wound up because it is unable to pay its debts. Under section 433 of the Companies Act, 1956, a company may be wound up by the court if it is unable to pay its debts. The court examined the financial position of the company as disclosed by the balance-sheets for the periods ending June 30, 1970, and June 30, 1971. The balance-sheet for June 30, 1970, showed that the company's entire share capital was substantially eaten away by accumulated losses, and the company was operating primarily on borrowed funds. The trial balance-sheet for June 30, 1971, presented a similar financial picture, indicating that the company's capital and reserves were eroded by carried forward losses. The court concluded that the financial position depicted in the balance-sheets warranted an inquiry into whether the company was unable to pay its debts.

2. Whether it is just and equitable to wind up the company due to loss of confidence in the management:

The petitioners contended that it was just and equitable to wind up the company because they had entirely lost confidence in the management by respondents Nos. 2 to 5, making it impossible to carry on the business. The court noted that serious disputes and differences existed between the two groups of shareholders, which prima facie indicated that the business could not be carried on smoothly. The court referenced principles applied to the dissolution of partnership firms, noting that in small private companies, similar principles could justify winding up. The court found that a prima facie case had been made out for investigating whether it was just and equitable to wind up the company.

3. The impact of delay in hearing the petition:

The company argued that the petition should not be admitted due to the considerable time elapsed between its presentation and the hearing for admission. The court acknowledged the delay but noted that it was partly due to the consent of both parties for adjournments. The court emphasized that the practice of adjourning winding-up petitions indefinitely should not be encouraged, as the order for winding up would relate back to an earlier date. The court concluded that the delay was not sufficient to dismiss the petition in limine.

4. The potential hardship caused by advertising the winding-up petition:

The company expressed concerns that advertising the petition would cause considerable hardship. The court cited the Supreme Court's decision in National Conduits (P.) Ltd. v. S.S. Arora, which established that the court is not bound to advertise a winding-up petition immediately upon admission and could suspend advertisement in appropriate cases. The court considered the financial position disclosed by the balance-sheets, indicating significant accumulated losses and reliance on borrowed funds. The court determined that it was in the interests of the company and its creditors to advertise the petition, allowing creditors to be aware of the company's financial situation and make submissions in the winding-up proceedings.

Conclusion:

The court directed that the petition be admitted and advertised in specified publications, with advertisements to appear by January 20, 1972, and the petition to be placed for hearing on the second Monday in February 1972.