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TMI Blog2007 (2) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... s that fall for consideration, certain other facts have to be taken note of. One is that the 1st respondent also filed an appeal against the order of the Company Judge being aggrieved of ordering dissolution and not winding up, but this appeal being OSA No. 3 of 1993 was subsequently dismissed as not pressed unconditionally on 2-4-2002. A suit had also been filed by the 1st respondent being OS No. 616 of 1983 for dissolution of the partnership, which was dismissed in default by the 1st Additional Judge, City Civil Court, Hyderabad. 3. The 1st respondent herein, who filed Company Petition No. 6 of 1983, and who shall be referred to as petitioner, filed the application before the Company Court claiming that he was partner of the firm PEC. The firm had 16 partners, disputes started between the petitioner and other partners and other partners tried to expel him but as there was no provision in the partnership deed for expulsion of a partner, he could not be expelled. His grievance was that 15 partners of the firm PEC were attempting to transfer whole of shares of the firm including of the petitioner, to the respondent-company without justification and legal authority. He also claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioners ? 4.If so, whether the respondent admits the liability ? 5.Whether the petitioners have issued the statutory notice of 21 days? 6.If so, whether the respondent-company has complied with the said notice as per law ? 7.Whether the company petition is not maintainable without adding the partners of the petitioner-firm as parties to the company petition ? 8.Whether the petitioners have no locus standi to file the company petition ? 9.Whether the amount alleged to be due to the petitioners is admitted by the company and whether the company is not able to meet the said liability ? 10.Whether CP No. 11 of 1983 is not maintainable in view of the suits filed by the respondent against the said firm claiming Rs. 4,36,000 from the said firms and other legal proceedings pending in the lower Courts ? 11.Whether the petitioners are in fact put up by the petitioner in CP No. 6 of 1983 on the file of this court for his benefit ? 12.Whether the company petition is bad and not maintainable on the ground that no leave of the court under section 439(8) of the Companies Act was sought and obtained and no petition for leave of admission was filed ? 13.Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely, whether in the absence of any pleadings by the parties for dissolution of partnership, the partnership could have been ordered to be dissolved by the Company Court in a petition for winding up, and if so, whether such a course could be ordered by the Company Judge when a suit had been pending and the suit had been dismissed for default. As a matter of fact, the relief sought in the suit, which was allowed to be dismissed in default, was now granted by the Court in the winding up petition. 11. The learned Company Judge was of the view that in terms of section 443(1)( d ) of the Companies Act, the Court could make any order that it thought fit. Whether an order of dissolution of partnership in a petition of winding up would be an order within the meaning of any other order that it thinks fit , the learned counsel for appellant submits that it is not possible to pass an order under section 44( g ) of the Partnership Act while hearing a matter under Companies Act. Section 443 of the Companies Act lays down the powers of the Court hearing a winding up petition. The power include dismissing of company petition for winding up, adjourning the hearing conditionally or uncondi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [1973] AC 360, 379 (HL) and carved out certain features. The Supreme Court also noted : "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 not to be read as being ejusdem generis with the preceding five clauses. While the five earlier clauses prescribe, definite conditions to be fulfilled for the one or the other to be attracted in a given case, the just and equitable clause leaves the entire matter to the wide and wise judicial discretion of the court. The only limitations are the force and content of the words themselves, just and equitable . Since, however, the matter cannot be left so uncertain and inde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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