9911796707
TMI Blog2005 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... ny shall initially have a share capital constituted of 150,000 equity shares of Rs. 10 each and the said shares will be subscribed by the said company namely Capital Controls (Delaware) P. Ltd. of 75,000 equity shares of Rs. 10 each and Choloro Controls Pvt. Ltd. being the respondent-company herein another 75,000 equity shares of Rs. 10 each. Thus under clause-4 of the shareholders agreement dated 16-11-1995 the holdings of both the petitioner as well as the respondent in the said company is 50% each. Under clause-7 of the said agreement the said company Capital Controls (Delaware Ltd.) hereinafter referred to as "capital control") was appointed as a distributor in India of the products manufactured by Capital Controls an American company. Under clause-8( i ) it was provided that the total board of directors of the company will be six including the managing director plus not more than two directors will be appointed by financial institution if so required. Pursuant to the shareholders agreement a company has been incorporated on 14-11-1995 which is known as Capital Controls India P. Ltd. . It stems that were differences and disputes by and between this group of shareholders who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (4) of section 439 it has been provided that the contributory shall not be entitled to present the petition for winding of the company unless 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 attest six months during the eighteen months immediately before the commencing of the winding up. It has been thus contended that the petitioner herein is not the registered shareholder of the company because the name of the petitioner does not appear on the register of members of the company. However it is admitted that the name of the erstwhile company which has since amalgamated namely Capital Controls was and is appearing on the register of members of the respondent-company. It is thus contended that the petitioner to maintain the present petition must first apply to the company for transfer of the shares in their favour under the provisions of section 111 and bring the name of new amalgamated company on the record of the register of members before the petition can be maintained for winding up under section 434 read with section 439 of the Companies Act. In support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. It is also contended that the rights in respect of the shares originally held by the said company stood transferred and vested in the petitioner herein and therefore the petitioners are the contributories and or shareholders of the said company and therefore the present petition is maintainable. Alternatively it has been submitted by the learned counsel for the petitioner that section 439 of the Act inter alia provides that any share in respect of which a person is a contributory and/or the said shares devolved on him through the death of a formal holder then such a person is a contributory as contemplated under section 439(1)(B) and thus a petition can be filed by such a person even if his name is not on the register of members of the company. It has been contended that the original shareholder namely Capital Controls cease to exist by virtue of amalgamation and it is a natural death of the said company and thus the shares are devolved on the petitioner by operation of law. I have considered the rival submissions of the parties. The provision of section 439(4)( b ) reads as under: "439. Provisions as to applications for winding up. - (4) A contributory shall not be ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which cannot be determined at the admission stage assuming that such prohibition is legal and or valid. Prima facie I am of the opinion that there is no breach of any such shareholders agreement because what is prevented is a transfer of shares and not merger of two companies. In cases of the tenancy of the premises the rights of the landlord are affected and there is clear prohibition in law. In my opinion no such analogy can be extended to the facts of the present case. The judgment of the Division Bench of this Court cited in the case of Vassant Holiday Homes (P.) Ltd. ( supra ) only specifies the requirement which are expressly set out under section 439(4)( b ) if the original holder namely Capital Controls was valid contributory by virtue of the provisions of section 439(4)( b ) then on amalgamation prima facie in my opinion the petitioner-company is also equally entitled to exercise the very same rights which the transferor company was entitled to in respect of the said shares. Otherwise also prima facie in my opinion section 439(4)( b ) does not restrict the petitioner from filing the present petition because it falls in the last category i.e., or have devolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the business of the company would be run by the one group of shareholders by contending that petitioners are not the shareholder of the company. Thus the respondent alongwith his two sons would run the company as if it is their sole proprietary concern and that also by holding only 50 per cent of the shares not even a majority of the shares in the said company. It is not permissible that by adopting such a method the company can be allowed to function and run. In any event the aforesaid issue also will be considered at the final hearing of the petition. Today I am at the prima facie stage of the admission of the petition. I am satisfied that prima facie case has been made out that the present company petition requires consideration. 11. However the learned counsel for the respondent-company has con-tended that even if I am of the prima facie opinion that the present petition should be admitted still the admission of the petition should not be advertised. It has been contended by the learned counsel by relying upon the judgment of the Apex Court in the case of National Conduits (P.) Ltd. [1967] 37 Comp. Cas. 786 in which the court has held that the court has three opt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
