9911796707
TMI Blog1998 (1) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... d of mismanagement of the company and in alternative seeking direction against the respondents to handle the management of the company and to provide details to the petitioner herein and for further declaration that the respondents have not properly managed the business of the company in the interest of the company." 2. Besides making above averments, the petitioner has not made any averments in the main petition for seeking order of winding up of the company. No doubt the petitioner has filed affidavit in support of the said petition and, in the said affidavit, the petitioner has stated that the respondent No. 1 is having 10,000 shares and the petitioner is holding 25,000 i.e., 1/4 share capital which is invested by him as per his cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l details were supplied. It is his further claim that in the year 1993- 94 six flats were to be sold by respondent no. 1 company which were worth Rs. 25,03,500, and the possession of the said flats were handed over by the said respondent without recovering the total amount of the sale consid-eration. Similarly, amount of Rs. 6,50,000 is shown in Tijori accounts in the name of respondent No. 2, and, thus according to him there were mismanagement, by the respondents and the respondents have joined hands with these persons, who have purchased the said flats. The prayer made by him in the petition are as under : "( A )This Hon'ble Court be pleased to pass an order for winding up the Respondents company i.e. Lavina Construction Finance Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has not also clearly mentioned as what is the price of each of the flats and what amount is received from each of them. It is also pertinent to note that neither in petition nor in his affidavit he said that he had either orally or has issued any notice to respondents No. 2 to 4 to know whether they have taken any steps against those persons who have not fully paid the price of the flats. Merely because the company is to receive to total price of the flats, it is very difficult to hold that it is a case of total mismanagement. It is also very pertinent to note that it is not the claim of the petitioner that none of those six persons or any of the six persons have no capacity to pay the price of the flats, as a matter of fact, he ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Mukesh Patel learned advocate has vehemently urged before me that though the mismanagement is not a ground as contemplated under section 433 as a ground for seeking the order of winding up, the petitioner can seek winding up of the company under section 433( f ). But in order to obtain an order for winding up of the company, the contributory seeking exercise of the discretionary powers of the code under section 433( f ) has to establish the circumstances justifying the winding up of the company and has further to show that no alternative remedy is available to him. Relief under section 433( f ) based on the just and equitable clause is in the nature of the last resort without other remedies being not efficacious enough to protect the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portance. A prima facie case has to be made out before the Court can take any action in the matter. Even admission of petition which will lead to advertisement of the winding up proceedings is likely to cause immense injury to the company if ultimately the petition has to be dismissed. The interest of the petitioner alone is not of predominant consideration. The interests of the shareholders of the company as a whole apart from those of other interests have to be kept in mind at the time of consideration as to whether the petition should be admitted on the allegations mentioned in the petition, (para 34). The sixth clause of section 433, namely, 'just and equitable' is not to be read as being ejusdem generis with the preceding five cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the six flats were given without receiving the full consideration and why the price of the six flats are outstanding and whether any steps are taken to get the said amount. To this query of mine, it was stated that petitioner has never issued any letter or notice seeking the said explanation. The petitioner had not also requested to call a special meeting to consider this aspect. From the averments made by the petitioner himself, it is quite clear that on account of this business activities, petitioner has to go out of India on and often and he is not in a position to know the day to day management of the company and, he also did not want to take personal interest in the management and merely on account of his suspicion, he has fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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