9911796707
TMI Blog2001 (10) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... panies Act, 1956, praying this honourable court to order winding up of the first respondent-company, namely, K.S. Kasimari Ceramique Pvt. Ltd. appoint the official liquidator and distribute its assets and share value to the contributors and creditors and as a partner to allot 60 per cent share to the petitioner by way of intestate succession or 80 per cent share to the petitioner by way of testamentary succession and render justice. 3. C.P. No. 274 of 1998 has been filed by Mrs. Mangala Vijayalakshmi under section 433( f ) of the Companies Act, 1956, praying this court to order winding up of the company, K.S. Kasimari Ceramique Pvt. Ltd. at No. 50, Pulla Avenue, Shenoy Nagar, Madras, by the provisional liquidator to take charge of the assets of the company and pass such further or other orders. 4. As all the three company petitions relate to winding up of the same company, namely K.S. Kasimari Ceramique Pvt. Ltd., with the consent of counsel appearing for the petitioner and respondents in the respective company petitions, the three company petitions were consolidated and taken up together for final disposal. 5. All the three company petitions have been filed under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general manager from the date of incorporation. K.S. Mothilal had purchased 200 shares of Rs. 100 each of the first respondent-company after incorporation. The deceased Shanmugasundaram and the petitioner K.S. Damodaran have been the directors of the first respondent-company from its inception. The first respondent-company, though flourished well at its inception, grew sick and came to a standstill around March, 1976. The immovable properties remained intact and there have not been any tangible creditors till date. Though there is reference to promoting of other partnership firms, such as M/s. Kasimari Auto Products. M/s. Kasimari Machine Tools Company, etc., by the deceased Shanmugasundaram or one or more of his sons, since we are not concerned with those firms, it is not necessary to refer to the same in detail. It would be sufficient to add that there are allegations and counter allegations with respect to those firms as well as the first respondent-company. It is the further case that the late Shanmugasundaram transferred all movables including all machines, lathes and shaping machines from the first respondent-company without any consideration or reward or returns to the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till date. It is alleged that the youngest brother, K.S. Anantharaman had played a fraud on the bank with the collusion of his mother and sister and redeemed the title deeds for his use in his attempt to generate funds for his self-misappropriation. K. Shanmugasundaram passed away on July 24, 1995, and he was cremated by Mothilal in his native place at Arumuganeri village on July 27, 1995. The following are the legal heirs of Shanmugasundaram alias Shanmugasundara Nadar : "1. Paul Thai Shanmugasundaram 72 years Widow 2. K.S. Mothilal 53 years 1st son 3. K.S. Damodaran 51 years 2nd son 4. C. Mangala Vijayalakshmi 43 years Daughter 5. K.S. Anantharaman 41 years 3rd son." According to the petitioner, being an intestate succession, all the legal heirs are entitled to 1/5th share of the 50 per cent share of Shanmugasundaram in the company with 10 per cent to each legal heir and the remaining 50 per cent owned exclusively by the petitioner, K.S. Damodaran in the first respondent-company. The petitioner claims that he owns 60 per cent share of the total assets of the first respondent-company. 11. It is claimed that the petitioner as the sole surviving director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instance of the third respondent, since May, 1997, against everyone including all the directors as alleged by Anantharaman. 16. Winding up of the company in terms of section 441(2) shall be admitted to have commenced from the date of presentation of the petition for winding up. C.P. No. 60 of 1996 was presented on March 4, 1996. Further, in terms of section 442, the company Court has the power to stay or restrain the judicial proceedings before any other court. Sections 464 and 465 deal with the appointment and proceedings with the committee of inspection to assist the winding up proceedings. In terms of section 465, all the company s properties vest with the custody of the official liquidator, where a provisional liquidator is appointed or where a winding up order is made. The hearing of C.P. No. 60 of 1996 is being delayed at the instance of the third respondent as he is colluding with other parties by way of secret and unjust enrichment and withdrawing C.P. No. 60 of 1996 or else by neglecting the case. Hence, the present company petition. 17. On April 29, 1996, one S. Shanmugam, an astrologer, resident of No. 9, Govinda Singh Street, Pulianthope, Chennai 12, who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succession. The first respondent has already filed a suit even during the year, 1997, on the file of this court for declaration of his shares in the first respondent-company and the same is now pending on some technical grounds. The petitioner is the owner of the 50 per cent shares of the share capital in the first respondent-company, which cannot be denied. One Mr. Johnson, son of V. Swamy Nadar is instrumental in abetting K.S. Anantharaman, Mangala Vijayalakshmi and Paulthai to conspire and collude to play a fraud and usurp the company s assets and other valuables. The memorandum and articles of association of the company clearly prove the absence of the name of M/s. Pandian Brick Works. There is no office for the first respondent-company nor has it any staff nor does it incur expenditure or any activity whatsoever for the company except the watchman s salary to safeguard the valuable vacant lands at Maduravoyal and for whom salaries are being disbursed by the petitioner from the first respondent-company s accounts. 19. Even without admitting the claims of shares of the respondents, there should be at least 25,000 shares to repay the initial share capital of Rs. 25 lakhs, eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1996 in the bare injunction suit and also in C.M.A. Nos. 228 of 1996 and 230 of 1996 dated May 6, 1997, they landed themselves in Cont. Appln. No. 199 of 1997 and this court ensured the maintenance of status quo at that stage. 22. The third respondent in C.P. No. 60 of 1996 filed his reply during August, 1997, in the said company petition. Paras 24, 25 and 26 are material for the purpose of the present company petition. The hearing of C.P. No. 60 of 1996 is being delayed at the instance of the third respondent, who is the petitioner in C.P. No. 60 of 1996, since he is, with ulterior motives, colluding with other parties for secret, unjust enrichment and is withdrawing C.P. No. 60 of 1996. Hence, the present company petition has been filed for joint hearing of both the petitions. 23. While setting out the above averments, the petitioner had prayed for winding up of the first respondent-company and to distribute its assets and share values to the contributors and creditors and as a part thereof, allot 60 per cent shares to the petitioner by way of intestate succession or 80 per cent share to the petitioner by way of testamentary succession. 24. Pending C.P. No. 199 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lraj 200 8. Mr. T. Thirumani Nadar 100 9. Mr. T. Jayaraman 200 10. Mr. John Jayakumar 200 11. Mr. V. Thangamani Nadar 84 12. Mr. A. Thangavelu Nadar 100 13. Mr. Swamy Nadar 84 Total 20,570 26. Shanmugasundaram Nadar died intestate on July 24, 1995, and on his death his shares devolved on his legal heirs, namely, his widow, one daughter and three sons. Though some of the shares were held by some of their nearest relatives, the entire business was carried on only by Shanmugasundara Nadar and other shareholders did not show any interest in the business of the company. The petitioner got married on June 2, 1978. The relationship between the petitioner and her three brothers and mother is not disputed. K.S. Mothilal studied up to S.S.L.C. and was assisting Shanmugasundaram till 1974 and, thereafter, he did not have good terms with his father and worked in various other places. Mothilal was not on talking terms with his father since 1974. The petitioner s second brother, Damodaran, the second respondent in the company petition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd respondent attempted to alienate the property owned by the first respondent-company and entered into an agreement with M/s. Southern Peninsula Housing Ltd., and received Rs. 10 lakhs as advance. The petitioner further states that the third respondent has entered into an agreement with third parties and has received advance amounts. The fifth respondent has joined the second respondent and have acknowledged receipt of the amounts from M/s. Southern Peninsula Housing Ltd. No amount was brought to the credit of the company nor was used for the discharge of debts due to the Government. Hence, the first respondent-company has to be ordered to be wound up on the ground that it is just and equitable. 30. The company is a private limited company founded on personal relationship involving mutual confidence between the members of the family. The substratum of the company had gone since the main object for which the company was started has become impractical. The company stopped its manufacturing operations and business as early as 1976. Respondent Nos. 2 and 3 refused to co-operate with other directors and have taken an adverse attitude with the intention to appropriate the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cannot be undermined on that score. It is stated that no compromise was arrived at the Panchayat held at Arumuganeri. In the meeting held at Arumuganeri on January 12, 1996, the second respondent had not chosen to attend and in the said meeting, the fourth respondent, Mrs. Paulthai Shanmugasundaram was nominated as director and the third respondent, K.S. Anantharaman was appointed as the managing director. 34. The claim of the second respondent that he had nominated the fifth respondent as director without conducting a board meeting and without notice to the other directors and, further, declared himself as the chairman of the company are invalid and illegal. The third respondent instituted the suit O.S. No. 5560 of 1998 on the file of the City Civil Court, Madras, in terms of the resolution, seeking for a relief of declaration and injunction against the second respondent and it is binding. 35. The allegation of collusion of the fifth respondent with the third respondent is denied. It is further stated that the petitioner s counsel agreed to the suggestion made by the Hon ble judge and also suggested expedient means for settlement. As per the discussions, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty and receiving advance on behalf of the company, has dealt with the property of the company and, therefore, she is precluded from seeking the relief of winding up. Family or shareholders disputes have to be settled only by ordinary civil courts and/or the Company Law Board. The petitioner is prevented from seeking any discretionary relief of winding up before this Court. No money was received by the third respondent as alleged. The petitioner had already signed the agreements of sale. The petitioner was accompanied by her husband. S. Chandrasekaran, working as Scientific Advisor, has filed the present winding up petition as she could not get the property at No. 50, Pulla Avenue, Shenoy Nagar. It is highly improper for the petitioner to institute a company petition for personal vendetta. 39. After much persuasion only, the third respondent agreed to be the managing director. There was no compelling circumstance for any of the directors such as the petitioner, the third and fourth respondents to subscribe to all the resolutions. The petitioner had voluntarily signed all the 25 agreements for sale. The petitioner s counsel was also present in all these occasions and never was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct, in that she was a party to the agreement as well as the resolutions passed by the board. The petitioner in the respective petitions cannot invoke either section 433( f ) or any other provisions of the Companies Act. The petitioners are not entitled to seek for winding up under section 433( f ) and such a petition is not maintainable. 44. The company petition is an abuse of the process of the court. It is also contended that the substratum has not been lost nor is the company unable to pay its debts. The value of the assets owned by the company is substantial and it is growing day by day. The company has got a rice mill, besides garden land, which is also fetching income. The petitioners attempt to treat the company s assets as their private property is also impermissible in law and such a claim is a misconception. In respect of the will put forward by the petitioner in C.P. No. 199 of 1998, it is contended that the will is not genuine, nor is it true, nor is it binding and it has been brought up at a belated stage. All the averments set out in the company petitions are denied and the petitioner in the respective petition is put to strict proof of the averments. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1998 filed under section 433( f ) seeking for winding up of M/s. Kasimari Ceramique Pvt. Ltd. as just and equitable is maintainable ? (2) Whether section 433(2) of the Companies Act is a bar to C.P. Nos. 199 of 1998 and 274 of 1998 ? (3) Whether substratum of the first respondent-company is lost ? (4) Whether the petitioner in each of the company petitions has made out a case to order winding up of the company as just and equitable clause ? (5) Whether the filing of company petitions is an abuse of the process ? (6) Whether the petitioner in each of the company petitions has come before this Court with unclean hands ? If so, whether the company petition is liable to be dismissed on that score ? (7) Whether the petitioner in each of the company petitions by their conduct is disentitled to seek for winding up of the company under section 433( f ) ? (8) Whether the disputed claims of testamentary succession with respect to the shares left by the late Shanmugasundaram could be the subject-matter of adjudication under sections 433( f ) and 439 of the Companies Act ? (9) What are the rights of the shareholders like the petitioner and contesting respondents in the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he will executed by Shanmugasundaram Nadar and the decree and judgment of the civil court alone will bind the parties. 47. Point Nos. 9 and 10 : At the first instance, it is essential to take up points 9 and 10 for consideration. 48. Also let us not lose sight of the fact that the petitioner in both the company petitions and at least one or two of the respondents in the company petitions proceed as if they are the owners of the entire assets of the company, while forgetting the fact that they are mere shareholders and they cannot claim to be the owners of the property owned or held by the company. In fact, proceedings have been instituted as if the petitioners and contesting respondents are entitled to share in the properties held by the first respondent-company, which is a misconception. Merely because sons, widow and daughter of the late Shanmugasundaram Nadar hold substantial shares, it does not mean they become the owners of the land or the assets of the company. Substantial portion of the case and claim has been made only on that misconception. 49. It is well-settled legal position that there is nothing to warrant for the assumption that a shareholder has any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidend is a share of the profits declared by the company as liable to be distributed among the shareholders. Reliance is placed on behalf of the appellant on a passage in Buckley s Companies Act (12th Ed., page 894) where the etymological meaning of dividend is given as dividendum, the total devisible sum, but in its ordinary sense it means the sum paid and received as the quotient forming the share of the divisible sum payable to the recipient. This statement does not justify the contention that shareholders are owners of a divisible sum or that they are owners of the property of the company. The proper approach to the solution of the question is to concentrate on the plain words of the definition of agricultural income which connects in no uncertain language revenue with the land from which it directly springs and a stray observation in a case which has no bearing upon the present question does not advance the solution of the question. There is nothing in the Indian Law to warrant the assumption that a shareholder who buys shares buys any interest in the property of the company which is a juristic person entirely distinct from the shareholders. The true position of a shareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take up manufacturing of bricks and its allied products by acquiring new loans or probe other avenues as they are the objects of the memorandum of association for continuance of business. It is resolved to authorise the managing director to probe avenues for utilising the sale proceeds as and when received, in new profitable ventures in line which the objects of memorandum of association. Therefore, as long as funds and valuable assets are admittedly available, the objects for which the company has been registered could very well be carried on. Therefore, it cannot be said that the company had lost its substratum. 55. It is sought to be contended that loss of substratum or disappearance of substratum of a company is evident, since the object for which it was incorporated has substantially failed or that it is impossible to carry on the business of the company except at a loss or the existing and possible assets are insufficient to meet the existing liability. This contention is based upon a misconception of the legal position. In Seth Mohan Lal v. Grain Chambers Ltd. [1968] 38 Comp. Cas. 543 (SC), in a case arising out of the 1913 Act, it has been held thus : "Finally, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It is true that because of this long drawn out litigation, the company s business has come to a standstill. But we cannot on that ground direct that the company be wound up. Primarily, the circumstances existing as at the date of the petition must be taken into consideration for determining whether a case is made out for holding that it is just and equitable that the company should be wound up, and we agree with the High Court that no such case is made out." (p. 556) The above pronouncement and the principles laid down by the Apex Court squarely apply to the present case and this contention deserves to be rejected. 56. In Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 , the Apex Court, while examining the question whether the substratum of the company has gone, held that it is to be alleged and proved as a fact and in that context held thus : ". . . In determining whether or not the substratum of the company has gone, the objects of the company and the case of the company on that question will have to be looked into. In the present case, the company alleged that with the proceeds of sale, the company intended to enter into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Insurance Society Ltd., In re [1960] 65 C.W.N. 68. But where the substratum has not completely gone and other business can be carried on, the company should not be directed to be wound up on the ground that it is just and equitable that the said company should be wound up. In the instant case, in my opinion, it has not been established that the main business or the only business of the company is gone or that there are no other objects in the memorandum of the company which can be carried out ( see Murlidhar Roy v. Bengal Steamship Co. Ltd. AIR 1920 Cal. 722). Mere mismanagement or misappropriation or misconduct on the part of the directors or the managing director, as has been alleged in the instant case, by itself is no ground for winding up ( see Lawang Tshang v. Goenka Commercial Bank Ltd. [1961] 31 Comp. Cas. 45 (Cal.), Halsbury s Laws of England (3rd edition) volume 6 page 535, article 1035, Cuthbert Cooper Sons Ltd., In re [1938] 8 Comp. Cas. 131 (Ch. D.); ( Anglo-Continental Produce Co. Ltd., In re [1939] 1 All ER 99). General allegations of oppression of minority shareholders also is not a ground. In the instant case, it has not been alleged that Anand Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liabilities. 60. Point Nos. 5 and 6 : Taking up the next point whether the company petitions instituted are a mere abuse of the process of this Court, though counsel for the petitioner in both the petitions represented themselves that the company cannot be continued and that the company has to be wound up, the entire focus relates to personal dispute between the family members of the late Shanmugasundaram Nadar and major portion of the dispute is whether the will left by Shanmugasundaram Nadar, bequeathing his share is genuine and true or whether the rule of intestate succession applies is the major controversy, which was concentrated by the petitioner in both the petitions. In fact, it is to be pointed out that the very relief prayed for in the company petition reads thus : "Winding up of the respondent-company and distribution of its assets and share value to the contributories and creditors and as a part thereof allot 60 per cent share to the petitioner by way of intestate succession or 80 per cent share to the petitioner by way of testamentary succession." 61. In fact in several places the company petition proceeds as if it is a plaint where the plaintiff cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustan Lever Ltd. [1995] 83 Comp. Cas. 30 1 , the Apex Court held that a shareholder has no interest in the assets of the company when the company is in existence. Courts have taken a uniform view that a shareholder of a company has no right in the assets of the company and he has no right to interfere with the day-to-day administration by its board of directors. 65. On an overall consideration of the pleadings, material documents and the contentions advanced by either side, this court holds that both the company petitions could very well be held as an abuse of the process and it is not a bona fide action, but it is an action, which has been initiated out of personal animosity or personal grudge or enmity, each member of the family had nourished against the other both during the lifetime of Shanmugasundaram Nadar and after the lifetime of the promoter, Shanmugasundaram Nadar. Winding up proceedings are not meant for settling personal scores among the family members. The company proceedings cannot be a proceeding for vendatta among the members of the family, though the family may be holding substantial shares and third parties may be minority shareholders and they may not be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be made out before the court can take any action in the matter. Even admission of a petition which will lead to advertisement of the winding up proceedings is likely to cause immense injury to the company if ultimately the application has to be dismissed. The interest of the applicant 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 application should be admitted on the allegations mentioned in the petition. The question that is raised in this appeal is as to what is the scope of section 433( f ) of the Act. Section 433 provides for the circumstances in which a company may be wound up by the court. There are six recipes in this section and we are concerned with the sixth, namely, that a company may be wound up by the court if the court is of the opinion that it is just and equitable that the Company should be wound up. Section 222( f ) of the English Companies Act, 1948, is in terms identical with the Indian counterpart, section 433( f ). It is now well established that, the sixth clause, namely, just and equitable is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, making a winding up order on the ground that it is just and equitable, deserves to be rejected summarily if the petitioner is found guilty of misconduct with reference to the affairs of the company or had acted in a manner prejudicial to the interests of the company or had proceeded as if he is entitled to the share in the assets of the company and that he is entitled to deal with the company s assets in any manner he likes. It is rightly pointed out that the petitioner in C.P. No. 199 of 1998, Mr. K.S. Damodaran had caused an advertisement to be issued in a daily where he had declared himself to be the owner of the property, while factually the owner of the property is the company itself. In the advertisement caused by the said petitioner, K.S. Damodaran, through his advocate Mr. G. Ramalingam, the following is the text : "Notice Please take notice that Mr. K.S. Damodaran is the absolute owner of the land and properties of K.S. Kasimari Ceramique Pvt. Ltd. comprised in Survey Nos. 127, etc., situate at Maduravoyal village, Saidapet Taluk. . . . Except my client, nobody else has got any right, title, interest over the above said properties . . . the public are hereby wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der chairman or the composition of directors, creditors as well as the valuation of the lands are not true nor is it correct and this would belie the very bona fides of the petitioner. 70. So far as the petitioner, Mrs. Mangala Vijayalakshmi in C.P. No. 274 of 1998 is concerned, it is to be pointed out that the petitioner is a party to all the decisions or resolutions of the board of directors including the resolution authorising sale of the lands at Maduravoyal. The petitioner had also signed the sale agreements in favour of 25 intending purchasers. Being a party to the sale agreement and resolutions, it is rather extraordinary on the part of the petitioner, Ms. Mangala Vijayalakshmi to turn round and accuse the respondent or refute her action in being a party to the resolutions, being a signatory to the 25 sale agreements. Belatedly, the said Ms. Mangala Vijayalakshmi had chosen to suggest for the first time that her signatures were secured by compulsion or force. There is no merit in the said suggestion. To a certain extent, as has been rightly pointed out, Mrs. Mangala Vijayalakshmi, petitioner in C.P. No. 274 of 1998 had been taking not only different but also shifting s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court will not be justified in examining such a dispute or issue as it is a complex question of fact. Shareholding cannot be decided by the company court. The petitioners have made reference to various aspects such as appointment of the petitioner as director, which is a self-appointment, the number of directors, the extent of shareholding the claim of share in excess of what is shown in the share register, the validity of meetings held on August 9, 1995, the validity of meetings held by the board on January 12, 1996, are all questions, which cannot be gone into in summary proceedings. Further, all these matters are pending consideration before the civil court and this court will not be justified in permitting the petitioner to agitate the same in this winding up proceedings, which is summary in nature. The company court, having summary jurisdiction, will not at all be justified in investigating complex questions of fact, which are to be decided by letting in evidence. Further, suits or other proceedings are pending and this court persuades itself not to enter into these disputes, as it is for the courts having competent jurisdiction to examine these disputed questions of fact. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt seeking for a declaration with respect to the number of shares which he claims to hold. The petitioner has also filed T.O. S.No. 23 of 1998 seeking for a probate of the alleged will, which is the subject-matter of serious challenge on the original side of this court. O.S. No. 5560 of 1996 is pending on the file of the City Civil Court, where a declaration has been sought for that K.S. Damodaran is not the chairman of the company and he has no right to deal with the property of the company and for other consequential reliefs. The said suit is also pending. The petitioner in C.P. No. 274 of 1998, Mrs. Mangala Vijayalakshmi, had already instituted Suit C.S. No. 372 of 2001 for partition of all her properties, including the company properties, which would show that the said petitioner and one or two of the family members have been treating the company properties as if they are the family properties and that each one of them is entitled to a share. These are the alternative remedies, which the respective petitioners, who had come before this court have already instituted, availed of and which are pending before the competent court. 78. Further, the petitioners in both the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of winding up. It is, therefore, necessary for a contributory seeking the discretionary powers of the court under section 433( f ) not only to establish that the circumstances obtaining in the company are such that a winding up of the company is the only alternative but also to show that he has no other remedies available." In Hind Overseas (P.) Ltd. v. Raghunath Prasad Jhunjhunwalla [1976] 46 Comp. Cas. 91, the Supreme Court has observed as follows (page 106 of 46 Comp. Cas.) : "Section 433( f ) under which this application has been made has to be read with section 433(2) of the Act. Under the latter provision where the petition is presented on the ground that it is just and equitable that the company should be wound up, the court may refuse to make an order of winding up if it is of opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy. Again under sections 397 and 398 of the Act, there are preventive provisions in the Act as a safeguard against oppression in management. These provisions also indicate that relief under section 433( f ) based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative remedy of approaching the Company Law Board either under sections 397 and 398 or under section 235 for causing investigation by the Central Government, the petition cannot be admitted. In Lokenath Gupta v. Credits Pvt. Ltd. [1968] 38 Comp. Cas. 599 (Cal.), it was held that mere mismanagement or misappropriation or misconduct on the part of the directors or the managing director, by itself or general allegation or oppression of minority shareholders is not a ground for winding up. It was also held that the petition for winding up has to be rejected on the ground that the petitioner has alternative remedy. In Atul Drug House Ltd., In re [1971] 41 Comp. Cas. 352 (Guj.), it was held that at the time of admission of a petition for winding up under section 433( f ), the petitioner must convince the court not only of a just and equitable ground for so doing but also that there is no alternative remedy open to the petitioner, that this is because if such a petition is admitted and there is a public advertisement it could cause irreparable harm to a solvent company even if the company succeeds ultimately. The next decision is Jose J. Kadavil v. Malabar Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shareholders, whether he be an ordinary shareholder or a director unless the procedure prescribed in this behalf is followed. Definitely in respect of the petitioner, K.S. Damodaran, there is no resolution signed nor even a copy of the resolution has been placed nor been pleaded before this court to support his action. One party claims that the value of the land is Rs. 32 lakhs per acre, while the other claims it to be Rs. 70 lakhs per acre. Be that Rs. 70 lakhs or Rs. 32 lakhs per acre as the case may be, this court is not called upon to examine the issue relating to sale agreement or as to what is the market value or as to whether it is beneficial for the company to dispose of its assets. 85. A notice from K.S. Damodaran, petitioner in C.P. No. 199 of 1998, which finds place with the enclosed agenda would show how some of the shareholders, namely, the family members of the promoter the late Shanmugasundaram Nadar, had attempted to divide the company property and as to how the arrangement is sought to be entered into and this will show not only the approach, but also the mind of the said petitioner and others who support him. It is only the board that has the power to sell an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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