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TMI Blog1996 (5) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... el and, therefore, he has no interest in prosecuting Petition No. 16 of 1995 pending before the CLB, New Delhi. 2. The main contention of counsel appearing for the petitioner Mr. Satish Chandra is that the only ground agitated in the petition is that the company should be wound up on the just and equitable ground. The case put up by the petitioner in the petition is that long before the incorporation of Kamini Hotel (P.) Ltd. a sum of Rs. 5,73,000 was given by the petitioner to respondent No. 1 without obtaining a receipt on trust and faith as there was a deed of partnership entered into between petitioner No. 1 and respondent Nos. 2 and 3 for the construction of the hotel. It is this amount which the petitioner has highlighted, which according to him was converted into allotment of 44,000 shares of Rs. 10 each in favour of petitioner No. 1 on 3-10-1994, and on the basis of this money and allotment of shares the petitioner canvassed before me that they were owners of 99 per cent shares of the company which is vehemently disputed by the opposite party. 3. The sum and substance of what Mr. Chandra has contended is that out of the aforesaid amount a part was towards allotment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chairman and appointing other persons as directors who were the wife and the son of the petitioner was without notice and consent of the respondents. According to the learned counsel for the respondent all these resolutions are fabricated and forged as Davender Kumar Mittal or Kamini Mittal did not sign the same. He further stated that Kamini Mittal is ill for the last more than seven years and she is incapable of moving out and, therefore, all the signatures purported to be the signatures of respondent No. 2 are forged. 6. Mr. Chawla has further contended that even otherwise the plan of the plot was sanctioned for residential properties. Mr. Chawla has further contended that any inclusion of an additional director by the petitioner on the board of directors is illegal as the same has not been done in accordance with law. He has further contended that even otherwise when admittedly there was a partnership concern on the own showing of the petitioner dated 4-3-1992, that partnership cannot be converted into a company in the absence of any express consent given by the respondent. He has alternatively argued that in any case admittedly the plot of land was not the property of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per forum and remedy is not the provisions under sections 433 and 439 but to file a suit for declaration, injunction or rendition of accounts and the present petition is totally misconceived. 7. Controverting the arguments of learned counsel for the petitioner that the documents which have been filed with the Registrar of Companies were filed after 20-4-1995, i.e., after the parties have arrived at the alleged oral settlement. 8. Mr. Chawla has further contended that as on 31-3-1994, under the heading share capital an amount on share application money is shown as Rs. 5,40,000. Mr. Chawla has contended that if this amount was towards share application money then why this entry is not reflected in the bank account of the company and comparing with the corresponding entry for 31-3-1993, no such amount has been shown. Similarly, under the head Land and building nil amount has been shown for the period ending 31-3-1993, whereas on 31-3-1994, Rs. 5,38,500 have been shown. On the basis of these discrepancies Mr. Chawla has contended that there were the books of account signifying these entries on the basis of which these entries have been reflected in the balance-sheet. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it is not possible to carry on the affairs of the company although the petitioner and his wife together are holding 99 per cent of the shares. He has further contended that at the stage of admitting the petition it is not necessary to pass elaborate orders and go deeper into this question and in his support he has cited Bhaskar Stoneware Pipes (P.) Ltd. v. Rajinder Nath Bhaskar [1988] 63 Comp. Cas. 184 (Delhi) and National Conduits (P.) Ltd. v. S.S. Arora [1967] 37 Comp. Cas. 786 (SC). Lastly, Mr. Chandra has contended that in the circumstances an administrator be appointed otherwise it would defeat the very purpose of maintaining the winding up petition and in his support he has cited Rajahmundry Electric Supply Corpn Ltd. v. A. Nageswara Rao [1956] 26 Comp. Cas. 91 (SC), which reads as under : ". . . It is no doubt the law that courts will not, in general, intervene at the instance of shareholders in matters of internal administration, and will not interfere with the management of a company by its directors, so long as they are acting within the power conferred on them under the articles of association. But this rule can by its very nature apply only when the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebody and was given to respondent No. 2 as alleged. This court had further asked the petitioner that in the absence of any document let an affidavit of the parties concerned who had advanced this loan be filed but nothing was done. Therefore, it cannot be authoritatively stated in the proceedings that any such loan was given or not for the construction of the hotel. The petitioner has contended that the documents and resolutions were executed by respondent Nos. 1 and 2 whereas the respondent has vehemently denied and stated that the documents are sheer forgery and respondent No. 2 was seriously ill and could not have signed. I do not want to express my opinion on this aspect of the controversy. What is important for this court in this case is whether the petitioners are holding 44,000 shares and thereby they constituted 99 per cent of the shareholding inter se the petitioner and his wife. Secondly, whether the building in question is in the name of the company or not so as to warrant any order for appointment of a receiver on the ground of it being just and equitable. Though Mr. Satish Chandra has contended that at this stage the court has to take a prima facie view and has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion money was not routed through the bank, if deposited. Therefore, in such an eventuality when prima facie the assumption of 44,000 shares being allotted to the petitioner and his wife seems to be inconsistent with the material placed on record, to admit the petition and go in for evidence would be an abuse of process of the court. 13. Coming to the question of the hotel, in the absence of anything on record to show that any money as alleged by the petitioner was given to the respondent for construction of the hotel and the sale deed not in favour of the company or the partnership, to treat the property of the hotel as the property of the company is neither fair nor just either in law or in equity. From the statement at page 231 of the paper book which I have referred to above the plea of the petitioner that he has given funds for the construction of the hotel again seems not plausible, as, on 31-3-1993, under the heading Schedule III fixed assets land and building the return is nil , whereas on 31-3-1994, an amount under this head has been shown as Rs. 5,38,500. No corresponding entries are in the bank account. The statement of account which has been filed at pages 182 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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