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TMI Blog2005 (4) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001. Advertisement in the Official Gazette was dispensed with. 3. Being aggrieved by the said order, the respondent company carried the matter in appeal before the Division Bench of this Court and by common order dated 18-1-2002, in O.J. Appeal Nos. 39 to 46 of 2001, the Division Bench of this Court permitted the respondent company to withdraw the appeals with a liberty to approach the learned Company Judge under rule 96 of the Companies (Court) Rules, 1956. The Division Bench has also held that the direction for publishing the advertisement would not operate till 6-2-2002 in light of the statement made by the learned counsel appearing for the respondent company to the effect that the respondent company would make an application on or before 6-2-2002. 4. Thereafter, the respondent company has moved company application Nos. 30 to 37 of 2002 praying for an order directing the petitioners not to publish advertisement of the captioned company petitions and prayer for revocation of the order dated 16-10-2001. This Court vide its order dated 8-4-2004 has allowed all these applications and revoked the order dated 16-10-2001 whereby the Court has directed publication of advertis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expired. No application was moved to bring the legal heirs on record on behalf of these two petitioners. These two petitions are accordingly abated. 9. Mr. R.K. Golani, learned advocate appearing for the petitioners has submitted that the respondent company, namely, M/s. Unicure Remedies Pvt. Ltd. was, initially, a partnership firm which was known as Unicure Pharmaceuticals and at that point of time, the petitioners had deposited certain amounts with the said partnership firm and it was promised and undertaken by the said partnership firm to return the amount of deposits with interest @15% as and when demanded. The said partnership firm was subsequently converted into a private limited company in the name and style of M/s. Unicure Remedies Pvt. Ltd., under the provisions of part-IX of the Companies Act, 1956 on 3-3-1993. He has further submitted that by virtue of the said conversion, all assets and liabilities of the partnership firm were transferred to the company and the company was liable to return the deposits with interest to the petitioners. The petitioners, thereafter, on number of occasions had demanded the return of deposits with interest but the respondent company wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarily fail. The petitions deserve to be dismissed even on the ground that the petitioners have not paid any amount to the company as the amount was paid by them to the partnership firm, namely, Unicure Pharmaceuticals and hence, the petitioners should not have any grievance against the company. 12. Before entering into the merits of the matter, Mr. Vakil has given the factual background and has submitted that M/s. Unicure Pharmaceuticals was a partnership firm formed by one Shri Bharat Shah and one Shri Ambalal Patel. Both the parties had agreed to bring in necessary funds in their own names and also in the names of their friends and relatives. The petitioners happened to be close relatives of the said Shri Ambalal Patel and by virtue of their relationship with the said Shri Ambalal Patel, in the name of the petitioners, the said Shri Ambalal Patel had given deposits to the said firm in the year 1983-84. The said firm was converted into a private limited company under part -IX of the Companies Act, 1956 on 3-3-1993. The said Shri Ambalal Patel had taken all the steps for the purpose of the said conversion. Immediately, after the conversion, disputes developed between the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and his associates gave discharge certificates discharging them from their liabilities. 14. Mr. Vakil has further submitted that the petitioners are closely related to Shri Ambalal Patel and whatever amount was payable to the petitioners was included in the amount payable by the company to Shri Ambalal Patel and his group and the said amount has been considered as liability of the company in the award of the arbitrator. Accordingly to the said award, whatever was required to be paid by the company in discharge of all its liabilities including the liability of the amount deposited by the petitioners, the same has been discharged and only a sum of Rs. 29,044.45ps. remained to be paid which the Company is ready and willing to pay to such of the depositors as is acceptable to all the depositors of Shri Ambalal Patel group provided the same is accepted in full and final settlement of all the depositors covered under the award of the arbitrator. All these aspects have been placed on record by the arbitrator, Shri Mayank Patel in an affidavit dated 25-3-1988, a copy of which is annexed along with the affidavit-in-reply. Mr. Vakil has also invited the attention of the Court to the mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t received the amount of deposit from the respondent Company and they have never accepted the award of the arbitrator. The petitioners have not received any notice of arbitration from the arbitrator and the petitioners have not authorised either Shri Ambalal Patel or any one to receive the amount of deposits from the respondent Company. The Company Law Board had dealt with the deposits on independent legal issues and one of such issues being that the deposits of the petitioners were not invited from public after the formation of the Company and the deposits not being time bound, the Company Law Board refused to intervene in the matter. The respondent Company is not doing the business in lawful manner. On the contrary, he pointed out two press notes published in the Newspapers of Vadodara which suggested that the respondent Company was involved in illegal activities. The respondent Company has faced excise raids and has also deceived the patients/customers by supplying less quantity in packing. Considering all these aspects, Mr. Golani has reiterated that the respondent Company is required to be wound up by an order of this Court. 18. For the purpose of meeting with the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners and, therefore, all these petitions deserve to be dismissed. 19. Apart from the above factual details, Mr. Vakil has also cited certain authorities in support of his contention that the petitions deserve to be dismissed on various counts. First of all, he has submitted that since the debt is discharged by the respondent Company, there is no reason for the petitioners to file these winding up petitions before this Court. The defence raised by the respondent Company cannot be treated as bogus or sham as there are serious disputes about the debts. The very fact that the petitioners have not made any reference in the petition with regard to arbitration proceedings shows that the petitioners have not come before this Court with clean hands. In this connection, he relied on the decision of this Court in the case of Mehta Integrated Finance Ltd. v. Ronak Prints (P.) Ltd. [1999] 3 Comp. L.J. 128 wherein this Court has held that the stand taken by the respondent Company is consistent. The petitioner has not come before the Court with clean hands by not making any reference to the settlement between the parties. In view of the settlement between the parties on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the Company s balance-sheet to ascertain its financial position. Apart from that, in the instant case before the Division Bench, the Court found that no facts and figures are given so far as appellant company is concerned. No capital is shown. There is nothing to indicate what are the liabilities. The Court exercising powers for winding up is exercising its equitable jurisdiction. Therefore, material must be placed before the Court and prima facie the material must go to indicate that the Company is unable to pay its debt. In the present case, the petitioners have not placed any material to that effect. There is no whisper in the petition about the financial position of the company. On the contrary, the material produced by the respondent Company along with its affidavit-in-reply and affidavit-in-sur-rejoinder clearly show that the Company is a profit-making company. It has earned profit in 2004. The financial data produced by the respondent Company also shows that the Company is having a very sound financial position. Mr. Vakil has, therefore, submitted that in view of this Division Bench Judgment, no case is made out by the petitioners for winding up of the respondent Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at despite the fact that the respondent Company in its reply to the statutory notice has clearly stated about the payment of the dues, award of the arbitrator and the relationship of the petitioners with Shri Ambalal Patel, there is no whisper about all these facts in the memo of all these petitions. The petitioners have, therefore, not come with clean hands before this Court and they have suppressed the material facts. The petitioners cannot invoke the equitable jurisdiction of this Court by concealing certain material facts. The question as to whether the petitioners have received the amount as per the arbitrator s award or whether they are relatives of Shri Ambalal Patel etc. can be gone into provided the petitioners have placed those facts before the Court right at the stage of filing petitions and that too when the petitioners have produced the copy of the reply given by the respondent company. However, the said reply was casually dealt with by observing that it was a vague and evasive reply. As a matter of fact, a detailed exhaustive reply dealing with all the aspects of the matter was given by the respondent Company. There is no denial of the fact stated in the reply. In suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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