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TMI Blog1947 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitioners they have no right to maintain the petition for winding up. As regards the first objection it is wholly without force. By referring to the record of the previous petition I find that Mr. K.L. Gauba, who appeared for the respondent company in that petition took a preliminary objection that since none of the petitioners had held any share for more than six months before the presentation of that petition, they had no right to prefer the petition. Mr. Justice Munir accepted this contention of Mr. Gauba and allowed the petitioners to make a suitable amendment in the petition. On the next date, i.e., the 27th November, 1946, the petitioners' counsel not only did not amend the petition but expressed his desire to withdraw it and it was on this that the petition was dismissed. The order which is very short may be quoted with advantage: "Mr. Narotam Singh does not wish to amend the petition and withdraws it. On the allegations in the petition it is clearly a premature petition. It is accordingly dismissed with costs not exceeding Rs. 100." The petition having been dismissed as premature and there being no allegation that the present petition is vitiated by a similar d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h specifies matters that would disqualify a contributory for maintaining a petition for winding-up and since no mention is made in the proviso of a contributory's failure to pay a further call made by the company, such a failure cannot by itself debar a contributory from maintaining a petition for winding-up. The petitioners' counsel took his stand upon the English case in In re Steam Stoker Company [1875] 32 L 143 in which it was held that a petition for winding up a company presented by a shareholder who, at the date of such presentation was in arrear of payment of call due from him to the company would on that ground be dismissed. The correctness of this view was doubted by the learned Judge himself who decided this case In re Diamond Fuel Company [1880] 13 Ch D. 401 . That was also a case relating to an application for winding-up of a company and the counsel for the appellant urged that since at the time when the petition came on to be heard the petitioner was in default for payment of calls no order for winding-up should have been made. In support of his contention the counsel cited in In re Steam Stoker Company [1875] 32 L 143 . The learned Judge (James, L.J.) mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time allowed by law, but it is contended that the responsibility for this lay not only upon the petitioners but also on some of their friends and helpers inasmuch as criminal proceedings were started by them against Mr. P.J. Kumar with the result that the police took away the entire records of the company on 14th September, 1946, and did not return most of them till the end of October, 1946. It was further contended that when the first petition was put in the company was called upon to take all records to Court every day and it had hardly any time to prepare a statutory report or to take steps for summoning the statutory meeting. The petitioners denied that they had any hand in the criminal proceedings or that they did anything which could have the effect of preventing the company from preparing the statutory report or call the statutory meeting. In addition it was urged on their behalf that even if all the allegations made by the company in this connection in its written statement be accepted as true, it had ample time to call a meeting to prepare the report and to call a statutory meeting after the bulk of the records, as is mentioned in para 5( c ) of the written statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g passage from the judgment of Lord Romilly, Master of Rolls, in In re London, Hamburg and Continental Exchange Bank ; Emmerson's case [1866] LR 2 Eq. 231 : "It is perhaps convenient that I sould state what my practice is with reference to the appointment of provisional liquidators. Where there is no opposition to the winding-up, I appoint a provisional liquidator as a matter of course, on the presentation of the petition. But where there is an opposition to it, I never do, because I might paralyse all the affairs of the company, and afterwards refuse to make the winding-up order at all. But When the directors themselves apply, or do not oppose the winding up, then, I appoint the provisional liquidator." This rule of practice was subsequently approved by the Court in Appeal in Oilfoden Building Society [1868] LR 3 Ch App 462 . As regards the fourth point taken by the petitioners' counsel certain facts have been brought to my notice which make me think that the petitioners' complaint that some of the books which the company is required to keep according to law, particularly the share-register and the account books, are not properly kept. It is also alleged and this allega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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