9911796707
TMI Blog1854 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... the company was to carry on trade in gold and silver. The company was never registered. This petition is resisted mainly by opposite parties Nos. 2 and 3. It is not necessary to mention the defence raised by them on merits because a preliminary question has arisen for decision whether the company consists of more than twenty members and whether an application for winding up of such a company can be entertained. It may, however, be remarked that although in the counter-affidavit filed by the opposite parties it was expressly stated that the company consisted of forty-eight partners no plea was taken to the effect that the application was on that ground not maintainable. The learned counsel for the petitioners contended that the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be formed for the purposes of carrying on the business of banking unless it is registered." Sub-section (2) runs as follows: "No company, association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any other business", i.e., a business other than banking business, "that has for its object the acquisition of gain by the company, association or partnership, or by individual members thereof, unless it is registered as a company under this Act or is formed in pursuance of an Act of Parliament of the United Kingdom or some other Indian law or of Royal Charter or Letters Patent." It is conceded on either hand that the object of the present company was "acquisition of gain". Since its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the winding up of such a company. It was held that this application could not be entertained. This case came up for consideration before a Bench of this court in Mewa Ram v. Ram Gopal. In that case the prayer was not for winding up of the company but for dissolution of that partnership. The majority view (expressed by Walsh and Mukerji JJ., Sulaiman J. dissenting) was that a suit for dissolution of such a partnership could not lie because the court would not recognise such a partnership. The learned Judges relied on the aforesaid English case. Even Sulaiman J., who gave a dissenting judgment, was of the opinion that had the petition been for winding up it could not be entertained. He remarked at p. 593: "There is ample justific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravention of the provisions of section 4 could not be wound up, his petition was maintainable. This argument has no force. Part IX is intended to cover the cases of those companies which can legitimately remain unregistered. In other words, it provides that companies consisting of not more than ten members in cases of banking companies and not more than twenty members in case of other companies can be wound up. It was not the intention of law to lend recognition to companies formed in violation of the provisions of the Indian Companies Act. But for Part IX an unregistered company, though permissible in law, could not be wound up. Part V of the Act which relates to winding up provides for winding up of a "company". The term "company" i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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