9911796707
TMI Blog2002 (7) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of this section ( a )by the company; or ( b )by any creditor or creditors, including any contingent or prospective creditor or creditors; or ( c )by any contributory or contributories; or ****** (4) A contributory shall not be entitled to present a petition for winding up a company unless ( a )****** ( b )the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months immediately before the commencement of the winding up, or have devolved on him through the death of a former holder." 2. Petitioner Nos. 1 and 2, Ms. Shakun Duggal and Ms. Sukhbir Duggal are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the winding up petition are Shakun Duggal daughter of late Alka and Ashok Duggal, the third petitioner, and Surbhi Duggal who is the second petitioner and Nishi Handa and Sangeeta Khetrapal who are pro forma respondents who have not pleaded support to the petition. 6. The respondents/applicants have submitted that the petitioners by using the knowledge and confidential information by them, derived from their association with the company, have floated a competing company with a misleading nomenclature called "Shakun Exim Corporation" and have purloined and enticed the customers of the respondent-company. This dubious conduct of the petitioners has led to filing of Suit No. 749 of 2000 by the respondents for permanent injunction, rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopments pursuant to the said removal of the petitioner were also taken note of and it was resolved that the transfer of shares as requested by petitioner No. 3 be refused and the said shares be offered to the existing shareholders. Information on April 14, 2000, regarding refusal of transfer of shares was sent to the petitioners. There has been no challenge to the refusal on April 14, 2000, by the petitioner-company to transfer the shares in favour of the petitioners. This company petition was filed and thereafter taken up for hearing on May 25, 2000. 9. The present application questions the locus standi of the petitioners. The main plea of the respondents/applicants is that the petitioners claim that they are contributories under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is warranted due to a deadlock in the management by relying on Hind Overseas (P.) Ltd. v. Raghunath Prasad Jhunjhunwalla [1976] 46 Comp. Cas. 91 (SC); is totally misplaced as the deadlock situation can only arise when shareholding is almost equal. In the present case, the petitioners locus can at best be traced to 25 per cent shares which were held by the late Alka Duggal particularly when the two proforma respondents, Nishi Handa and Sangeeta Khetrapal have not supported the case of the petitioner about the balance 25 per cent holding. I am, therefore, satisfied that the winding up court is not the appropriate court to investigate the refusal to transfer the 25 per cent shares in the name of petitioner Nos. 1 and 2. Significantly th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure and on piercing the veil it is found that in reality it is a partnership. On the allegations and submissions in the present case, we are not prepared to extend these principles to the present company. The principle of just and equitable clause baffles a precise definition. It must rest with the judicial discretion of the court depending upon the facts and circumstances of each case. These are necessarily equitable considerations and may, in a given case, be superimposed on law. Whether it would be so done in a particular case cannot be put in the strait-jacket of an inflexible formula. ****** Section 433( f ) under which this application has been made has to be read with section 443(2) of the Act. Under the latter provision wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deadlock in the management of the respondent-company, it will be just and equitable that the respondent-company be wound up. The above position of law clearly indicates that in the present case, the petitioners have the appropriate remedy to challenge the refusal to transfer the shares and winding up is not the appropriate remedy. The petitioners have also chosen not to invoke the remedy under sections 397 and 398 of the Act alleging oppression and mismanagement. Consequently the question of deadlock, proceeding on the basis that petitioner Nos. 1 and 2 were entitled to be treated as shareholders of 25 per cent shares cannot be invoked as the petitioners hold only 25 per cent shares and in the absence of the support from any other sharehol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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