9911796707
TMI Blog1999 (12) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... take on lease or in exchange, hire or otherwise acquire and improve all kinds of immovable and movable properties, etc., and also to carry on business of builders, contractors, etc., more particularly, mentioned in para 5 of the petition. 3. The petitioner who is a shareholder of the company is holding 5,540 equity shares of Rs. 10 each and he was allotted 5,540 shares in the Board meeting of the company held on 16-6-1986; and the share certificates were issued in favour of the petitioner on 29-3-1995 and the said certificates were delivered to the petitioner in April, 1997. 4. It is further alleged that originally, the petitioner was one of the partners of a firm, S.B.K. Construction Co., and the said firm was dissolved on 30-12-1985, and that the company was also a partner of the firm and the petitioner was the absolute owner of vacant site to an extent of 400 sq. yds. which is part of 5,363 sq. yds. situated in Maharanipeta Ward, Visakhapatnam, as he purchased the same under a registered sale deed, dated 25-4-1983 for Rs. 50,000. The petitioner s capital contribution to the firm was the said piece of land in Visakhapatnam. 5. It is further stated that as the partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no activity worth the name has even been undertaken by the respondent-company. The petitioner reliably learnt that the company does not intend to do any business for which it was established and the persons managing the company are only interested in disposing of the assets, particularly, the land belonging to the company in Visakhapatnam, the petitioner has moved this application for winding up of the respondent company under the provisions of section 433( c ), and ( f ). As he being an original allottee and holding shares from the date of the inception of the company as he is a contributory under section 439(1)( c ), he is entitled to present the company petition. Hence, he prayed to wind up the respondent company. 6. In response to the notice before admission, the managing director of the company filed a counter admitting the incorporation of the company. It is further stated in the counter that the authorised capital of the company as on 31-3-1996 is 2 crores divided into 20 lakh equity shares of Rs. 10 each and the issued paid up subscribed capital is 94,38,660 divided into 9,43,866 equity shares of Rs. 10 each and that the company has acquired 7,500 sq. metres of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the respondent company on 16-7-1996 for extension of time under the provisions of the Urban Land Ceiling Act, and for enabling the respondent company to complete the five star hotel in time. As the Government has not taken any action for extension of time in spite of the directions of this Court given in W.P. No. 27120 of 1995, the respondent-company filed W.P. No. 32874 of 1998 and the same was disposed of by this Court on 5-11-1998 with a direction that the application made by the petitioner on 16-7-1996 and 11-8-1997 before the Principal Secretary to Government, Revenue/UC-III, Department shall be considered and disposed of in four weeks. Thereafter, the Government of A.P. in G.O. Ms. No. 108, dated 9-2-1999 rejected the request of the respondent company for extension of time for utilisation of the exempted land beyond 6-8-1996 and also withdrew the exemption granted by G.O. Ms. No. 689, dated 7-8-1991. Questioning the same the respondent company filed W.P. No. 4120 of 1999 and the same is pending in this Court and this Court by an order, dated 3-3-1999 suspended G.O. Ms. No. 108, dated 9-2-1999. Therefore, in view of the unforeseen circumstances, the respondent-compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisive question is whether there is a reasonable hope of the company commencing or resuming business and doing it at a profit and whether the substratum of the company has disappeared. Another consideration in the matter of order for winding up is taking into consideration the wishes of the majority of the shareholders about continuing the business." (p. 194) 12. The learned counsel for the respondent also relied on a decision in the case of Paramjit Lal Badhwar v. Prem Spg. Wvg. Mills Co. Ltd. [1986] 60 Comp. Cas. 420 wherein the Allahabad High Court discussed about the suspension of business and held that there must be suspension of all business and not some part of it. It was further held that a company can be said to be commercially insolvent, if it is not in a position to meet its current liabilities, as they arise in the ordinary course of business . It was also held that if the company petition is filed by its erstwhile secretary-manager with mala fide intention, then the company cannot be wound up. . 13. The learned counsel also relied on a decision in the case of Tani S. Bhargava v. Sovintorg (India) (P.) Ltd. [1991] 71 Comp. Cas. 631 wherein the De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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