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TMI Blog2001 (5) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... rders were passed by the CLB in the proceedings before it. The said petition before the CLB was, however, subsequently withdrawn by the appellants. The appellants contend that since they subsequently came to the conclusion that survival of the company was not in the interest of its shareholders, the petition was filed before this Court. Appellant No. 1 had contended that he is holding more than 99 per cent shares and he is no longer interested in the running of the Hotel at Mussorie which was the purpose of incorporation of defendant No. 2 company and, therefore, appellant No. 2 company should be wound up on just and equitable ground. The petition of the appellant was, however, dismissed by the learned Company Judge vide the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other are absolute owners of the half share each of the land. Appellant No. 2 company was incorporated on 15-5-1992. The shares are thus stated to have been allotted in terms of the Articles of Association for which admittedly no notice of allotment was issued. 3. The learned counsel for the appellants on the strength of the aforesaid facts and the fact that monies have been paid to respondents 1 and 2 stated that appellant No. 1 was defrauded of the money and since he owned 99 per cent of the share was claiming winding up of the company on just and equitable ground. It may be pointed out that the learned counsel for the appellants accepted the position that in the absence of the relevant ingredients, clause ( a ) and clause ( e ) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 6 lakhs against a sum of Rs. 5,73,000, the amount borrowed for construction of the Hotel. It was thus contended that there was no consideration which passed on to appellant No. 2 company for the alleged allotment of 44,000 shares. 6. We have heard the learned counsel for the parties at length and have gone through the record. The learned Company Judge has in the impugned order recorded the admitted position of the plot of land being in the name of respondent No. 2 and not being a property of appellant No. 2 company. The learned Company Judge has observed that appellant No. 1 was time and again asked to show any document on the basis of which the amount of Rs. 5,73,000 was given to the respondents for constructions of the Hotel. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to decide all the questions raised in the petition and the petition should not have been rejected at its threshold. The Supreme Court considered the scope and ambit of section 155 of the Companies Act (which was subsequently omitted by the Companies (Amendment) Act, 1988 with effect from 31-5-1991 and upheld the principles of law laid down by a Full Bench of this Court holding that the power to be exercised under section 155 is of a summary nature. However, on the facts and circumstances of the said case the Supreme Court remanded the matter to the Company Judge to consider whether the allegations of forgery and fabrication were at least prima facie sustainable to deny the exercise of jurisdiction under section 155. Certain other direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants further contended that the petition filed before the Company Judge ought to have been admitted as a matter of course and only thereafter it could be examined in merits. He relied on the observations of the Supreme Court in the case of Shanta Genevieve Pommerat v. Sakal Papers (P.) Ltd. [1985] 57 Comp. Cas. 469 in support of the said submission. In Shanta Genevieve Pommerat s case ( supra ) the Supreme Court considered the case of an appeal arising from the dismissal of a petition under sections 397, 398 and 403 to hold that the appeal should not have been dismissed in limine and the same was liable to be admitted as a matter of course. This preposition cannot be applied to a petition and would apply to an appeal like the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his powers to wind up the company. The controversy relating to the alleged allotment of the shares, the consideration for the same and other related issues are such which as per the circumstances brought on record are liable to be adjudicated upon by the competent Civil Court. In order to arrive at a conclusion whether to entertain or not to entertain the petition of the appellants, the learned Company Judge had to consider the material on record and come at least to a prima facie view. This the learned Company Judge has done. The appellants cannot make a grievance of the same. Needless to say that the observations of the learned Company Judge are only prima facie and that too for the purpose of considering the petition filed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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