9911796707
TMI Blog2016 (3) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent - M/s Amritsar Swadeshi Textile Corporation (P) Limited having its registered office at Ramtirath Road, Putlighar, Amritsar is a company incorporated as Company Limited by shares and is registered with the Registrar of Companies, Punjab, HP and Chandigarh at Jalandhar vide certificate of incorporation dated 24.1.2005, Annexure P.1. The partnership firm was formed by Hansraj Khanna alongwith his three sons namely Hari Krishan Khanna, Siri Krishan Khanna and Raj Krishan Khanna in the year 1957 at Amritsar. It owned a textile manufacturing unit and its main business was of manufacturing woollen blankets and woollen fabric. Since it was a family business, other male members of the family on attaining majority were inducted as partners in the firm. On each inclusion, fresh partnership deeds were executed. Over the period of time, the firm expanded its business and set up wholly owned manufacturing units styled as M/s ASWM Spinning Mills, M/s Sommettex Fabrics, M/s Swadeshi Udyog, M/s Hansa Fabrics, M/s Amritsar Swadeshi Woollen Mills (Garments Division) and M/s Swadeshi Koreatex. In 1959, Shri Hari Krishan Khanna died and petitioner No.1 being his eldest son who was then a stude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directors; whether the directors would be permanent or removable by an ordinary resolution of 51%; the managerial responsibilities of each member of the family/director and emoluments and perquisites of the directors. In view of the differences,one of the partners L.K.Khanna wrote a letter in August 2004 to the petitioners, Annexure P.5 stating that there was lack of confidence amongst the partners and therefore, in order to sort out the problem, there was no need to form a company. They could sign a Memorandum of Understanding (MOU) to divide the assets in partnership concern itself. Thereafter, the idea of formation of a company was given up and steps were initiated to divide the assets within the partnership itself. Accordingly, a draft MOU/Family settlement was signed by heads of all the four branches of the family on 5.8.2004. Several rounds of discussions were held among the partners for implementation of the draft memorandum/family agreement for division of assets by draw of lots. However, some of the partners conspired to disregard the decision not to form a company and to divide the assets within the partnership itself by draw of lots. The petitioners had executed a gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation (MOA) or Articles of Association (AOA). The petitioners had never given any GPA to anyone for this purpose. Some GPAs were given to Siri Krishan Khanna decades back but these were limited to matters pertaining to routine business of the firm. None of them contained even a single word authorizing anyone to sign the MOA or AOA for formation of a company. After 1989, Vinod Krishan Khanna was acting as Vijay Krishan Khanna's GPA as the GPA of 1969 had been revoked in 1989 and was repeatedly recognized as such by all partners particularly Siri Krishan Khanna. Hence after 1989, Siri Krishan Khanna had no authority to act on behalf of Vijay Krishan Khanna at the time of signing MOA/AOA on 21.1.2005. When on 24.2.2005, Siri Krishan Khanna first informed the petitioners that the partnership had been converted into a company and that GPAs of the petitioners had been used to sign on their behalf, petitioner Nos. 1 and 2 Vinod Krishan Khanna and Vimal Krishan Khanna asked Siri Krishan Khanna to return their GPAs immediately because they did not want them to be again misutilised for any other purpose. Hence again fraud was played on the petitioners. Instead of returning the GPAs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition under section 433(f) of the Act because they have filed the petition as partners of the erstwhile firm Amritsar Swadeshi Woollen Mills. The provisions of the Act do not entitle an individual partner to file a winding up petition. Only those persons who are specifically named in Section 439 of the Act are entitled to file a winding up petition. The petitioners have also challenged the change made by the land revenue department in the revenue records in favour of the company by representing themselves as partners of the firm. They have also filed their claims for compensation as partners of the firm before the Sub Divisional Magistrate-1, competent authority, National Highways Act, 1956. The incorporation of the company cannot be challenged on any ground in view of Section 35 of the Act. The petitioners had already agreed that the partnership firm was a joint stock company within the meaning of section 566 of Part IX of the Act and that the said joint stock company be got registered under Part IX of the Act. The partnership firm was converted into joint stock company by adopting the procedure laid down in Part IX of the Act. The certificate of incorporation dated 24.1.2005 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 2.2.2004 and partnership deed dated 2.4.2004 nor did they revoke the partnership deed dated 2.4.2004. Even earlier, the petitioners had filed civil suit on 9.4.2005 maintaining their status as partner of the erstwhile firm which was withdrawn on 5.5.2006. On merits, the allegations made in the petition have been controverted by giving parawise reply. The petitioners had not made any allegation against the respondent company or against the working of the company or there was any averment in respect of the period after the respondent company was incorporated. On these premises, prayer for dismissal of the petition has been made. 4. I have heard learned counsel for the parties and perused the record. 5. The petitioners have preferred the company petition seeking winding up of the respondent-company-M/s Amritsar Swadeshi Textile Corporation (P) Limited under Section 433(f) of the Act on the ground of Just and equitable . The core issue arising in this Company Petition is whether it would be appropriate to wind up the respondent-company M/s Amritsar Swadeshi Textile Corporation (P) Limited under Section 433(f) of the Act on the ground of just and equitable . 6. It would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion that some other remedy is available to the petitioner. When a winding up petition is made under section 433(f) of the Act on the cause of just and equitable ground, it is the duty of the petitioner to disclose the material facts in clear and fair manner. While dealing with the issue of winding up of a company on just and equitable ground, the Gujarat High Court in Re: Atul Drug House Limited, (1971) 41 Company Cases 352 (Guj.) elaborately discussing the issue had observed as under:- As regards the last ground, it should be kept in mind that when a winding-up petition is made under section 433(f) on the cause of just and equitable ground, the petition to exercise such jurisdiction must be filed with absolute candour. Section 443(2) in terms enacts that 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. In the context of section 443(2) which is applicable when the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 408 empowers the Central Government to appoint not more than two directors notwithstanding anything contained in the Act it if it is satisfied after such inquiry as it deems fit to make that it is necessary to make the appointment in order to prevent the affairs of the company being conducted either in a manner which is oppressive to any members of the company or in a manner which is prejudicial to the interests of the company or to public interest. When the state of affairs of the company were required to be investigated by the minority group by applying under section 408, this material fact ought to have been disclosed in the petition. The petitioners have never cared to disclose this fact in the petition. Mr. Divan vehemently argued that there was no deliberate suppression and this might have been overlooked and, for such an inadvertent omission, the extreme penalty of rejecting the petition should not be imposed on the petitioners. Mr. Divan in this connection pointed out that some reference to this application under section 408 is made by the petitioners by relying upon the admissions which have been made by the majority group in that application. Such a causal reference wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omp Case 543 as well as to the judgment of the Division Bench of this court in Bhaskar Stoneware Pipes Pvt. Ltd. v. Rajinder Nath Bhaskar [1988] 63 Comp Case 184. On the ground of reduction of the share capital, mismanagement and oppression, the petitioners can invoke the jurisdiction of the Company Law Board under section 397 and can file civil suit for seeking relief. To my mind, the remedy of winding up is not the answer, and, therefore, the petition as such is not maintainable under section 433(f) of the Act. 9. Just and equitable principle cannot be used as an instrument to wind up a company on mere allegations. Various judicial pronouncements have held that unless the court is compelled by circumstances, an order for winding up a company on just and equitable ground should not be made. No body can seek winding up as a matter of right. It is a discretion vested with the company court to be exercised with due diligence because the court has summary jurisdiction and it cannot go into complicated questions of fact which are disputed by the respondents. Under just and equitable clause, the interest of the applicant is not of predominant consideration. The interest of the sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be by petition presented, subject to the 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 (d) by all or any of the parties specified in clauses (a), (b) and (c), whether together or separately; or (e) by the Registrar; or (f) in a case falling under section 243, by any person authoised by the Central Government in that behalf. (2) A secured creditor, the holder of any debentures (including debenture stock), whether or not any trustee or trustees have been appointed in respect of such and other like debentures, and the trustee for the holders of debentures, shall be deemed to be creditors within the meaning of clause (b) of sub- section (1). (3) A contributory shall be entitled to present a petition for winding up a company, notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all, or may have, no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities. (4) A contributory shall not be entitled to present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this section- (a) any company consisting of seven or more members, which was in existence on the first day of May, 1882 , including any company registered under Act No. 19 of 1857 and Act No. 7 of 1860 or either of them or under any laws or law in force in a Part B State, corresponding to those Acts or either of them; and (b) any company formed after the date aforesaid, whether before or after the commencement of this Act, in pursuance of any Act of Parliament other than this Act or of any other Indian law (including a law in force in a Part B State), or of any Act of Parliament of the United Kingdom or Letters Patent in force in India, or being otherwise duly constituted according to law, and consisting of seven or more members; may at any time register under this Act as an unlimited company, or as a company limited by shares, or as a company limited by guarantee; and the registration shall not be invalid by reason only that it has taken place with a view to the company's being wound up: Provided that- (i) a company registered under the Indian Companies Act, 1882(6 of 1882), or under the Indian Companies Act, 1913(7 of 1913), shall not register in pursuance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) when a poll is demanded, regard shall be had to the number of votes to which each member is entitled according to the regulations of the company. (3) Nothing in this section shall be deemed to apply to any company the registered office whereof at the commencement of this Act is in Burma, Aden or Pakistan 566. Definition of joint- stock company . (1) For the purposes of this Part, so far as it relates to the registration of companies as companies limited by shares, a joint stock company means a company having a permanent paid up or nominal share capital of fixed amount divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in the one way and partly in the other, and formed on the 1. The words or in the State of Jammu and Kashmir omitted by Act 62 of 1956, s. 2 and Sch. (w. e. f. 1- 11- 1956 ). principle of having for its members the holders of those shares or that stock, and no other persons. (2) Such a company, when registered with limited liability under this Act, shall be deemed to be a company limited by shares. 567. Requirements for registration of joint- stock companies. Before the registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teration of the objects of a company shall, so far as applicable, apply to any alteration under this section with the following modifications:- (a) there shall be substituted for the printed copy of the altered memorandum required to be filed with the Registrar a printed copy of the substituted memorandum and articles; and (b) on the registration of the alteration being certified by the Registrar, the substituted memorandum and articles shall apply to the company in the same manner as if it were a company registered under this Act with that memorandum and those articles, and the company' s deed of settlement shall cease to apply to the company. (3) An alteration under this section may be made either with or without any alteration of the objects of the company under this Act. (4) In this section, the expression deed of settlement includes any deed of partnership, Act of Parliament of the United Kingdom, Royal Charter or Letters Patent, or other instrument constituting or regulating the company, not being an Act of Parliament or other Indian law. 11. Section 35 of the Act deals with conclusiveness of certificate of incorporation. Once certificate of incorporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be read and seen. These were unregistered GPAs and therefore, could not be used for transferring the right, title and interest in the assets of the partnership firm. The GPAs were executed decades earlier by the petitioners only for regulating the day to day functioning of the partnership firm in their absence. (ii) The basis of incorporation of a company is partnership deed dated 2.4.2004 whereas the Articles and the Memorandum differ from the scheme contained in the partnership deed. The partnership deed dated 2.4.2004 is signed by all the three petitioners individually. The terms agreed upon in the partnership deed were unilaterally changed/replaced by the Memorandum and Articles by the respondents without the knowledge of the petitioners. (iii) There was no authority to the Chartered Accountants to act on behalf of the petitioners. (iv) Fraud vitiates every action and one should not be allowed to reap profits of his misdeeds. (v) The documents Forms 18, 31, 39, letter dated 24.1.2005 by Mr. Mehra, resolution dated 2.2.2004 and partnership deed dated 2.4.2004 submitted for incorporation of the company are not in terms of the provisions of the Act. Rajiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the following pronouncements:- (a) Sri Arthamari Transport (P) Limited and others vs. K.P.Swami, AIR 1966 Madras 231; (b) Hind Overseas Pvt. Limited vs. Raghunath Prasad Jhunjhunwalla and another, (1976) 3 SCC 259; (c) Needle Industries (India) Limited and others vs. Needle Industries Newey (India) Holdings Limited and others, AIR 1981 SC 1298; (d) Syed Abdul Khader vs. Rami Reddy and others, AIR 1979 SC 553; (e) G.V.Sreerama Reddy and another vs. Returning Officer and others, AIR 2010 SC 1323; (f) K.M.Mani vs. P.J.Antony and others, AIR 1979 SC 234; (g) Krishan Kumar vs. Nand Lal, 2011(1) RCR 970 (Civil) (P H); (h) Shiba Shankar Mohapatra and others vs. State of Orissa and others, AIR 2010 SC 706; (i) Firm Mathra Das Jagan Nath vs. Firm Jiwan Mal Gian Chand, AIR 1928 Lahore 196; (j) Timblo Irmaos Limited, Margo vs. Jorge Anibal Matos Sequeira and another, (1977) 3 SCC 474; (k) Naresh Chandra Sanyal vs. Calcutta Stock Exchange Association Limited, 1971(1) SCC 50 (l) Sangramsinh P.Gaekwad and others vs. Shantadevi P.Gaekwad (dead) through LRs and others, (2005) 11 SCC 314. (m)Claude-Lila Parulekar (Smt.) vs. Sakal Papers (P) Limited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents. Support was gathered from the following judgments:- (a) Salim Akbarali Nanji and others vs. Union of India and others, 2003 Company Cases 141; (b) Rama Sundari Ray vs. Syamendra Lal Ray, (1947) 2 ILR Calcutta Series 1; (c) Smt. Somawanti and others vs. The State of Punjab and others, AIR 1963 SC 151; (d) In re Barned's Banking Company (Peel's case), 1867 Volume II Chancery Appeals 670; (e) Moosa Goolam Ariff vs. Ebrahim Goolam Ariff, 1912 Volume XL ILR Calcutta Series 1 (f) Hammond vs. Prentice Brothers Limited, 1920 Chancery Division 201; (g) Vali Pattabhirama Rao and another vs. Sri Ramanuja Ginning and Rice Factory P. Limited and others, (1986) 60 Company Cases 568; (h) Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others, (2010) 4 SCC 728; (i) In re Atul Drug House Limited, (1971) 41 Company Cases 352 (Guj.); (j) Commissioner of Income Tax vs. Greenworld Corporation, (2009) 314 ITR 81; (k) S.B.Adityan and others vs. First Income Tax Officer, Madras, (1964) ITR 453; (l) M/s Anand Construction (P) Limited vs. Ram Niwas, 1994(31) DRJ 205 (Delhi); (m) National Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the certificate, by analogy to the decision in the case of In re National Debenture and Assets Corporation (1) might have been challenged a point on which I entertain the gravest doubt, having regard to the very different wording of sections 18 and 192 of the Act of 1862 I am satisfied that it is not now open to the plaintiff to go behind the certificate in this case and that the court of appeal never intended the observations relied upon to apply, even as the statute law then stood, to a company then already registered under Part VII and possessed of the evidence declared by statute to be conclusive of the fact that it was a company authorized so to be registered. 18. In Moosa Goolam Ariff's case, it was recorded thus: 8. The provisions of the Indian-Companies Act of 1882 as regards the incorporation of Companies are the same as those contained in the Imperial Act of 1862, except that it is specially provided in Section 40 of the Indian Act that it is not the duty of the Registrar to require evidence as to whether the subscribers to the Memorandum are competent to contract. Probably this provision was introduced because, according to the Indian law, the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence and law recognises it as a juristic person separate and distinct from its members. In K.Mohan Babu vs. Heritage Foods India Limited, 2001(5) ALD 800, it was observed by the Andhra Pradesh High Court as under:- 28. Section 433 of the Act deals with several circumstances in which company may be wound up by the Court and the opening words of the provision A company may be wound up by the Court clearly go to show that the provision itself is discretionary, discretionary in the sense, judicious discretion only. Section 433(f) of the Act specifies if the Court is of the opinion that it is just and equitable that the company should be wound up . What is the meaning of the words 'just and equitable'. In Davis Co. v. Brunswick (Australia) LD., AIR 1936 PC 114, their Lordships of the Privy Council observed that no general rule can be laid down as to the nature of the circumstances which have to be borne in mind in considering whether the case comes within the phrase 'just and equitable' for purposes of winding-up. In R.E.S. Co., Ltd v. Nageswara Rao, 1956 ALT 279, their Lordships held that the words 'just and equitable' specified in Section 433 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to relieve against abuse . 21. Further, it has been authoritatively held that a company is a social institution having duties and responsibilities towards the community in which it functions and one of the paramount objectives is to bring about maximization of social welfare and common good. This necessarily involves reorientation of thinking with regard to the duties and obligations of the company not only vis-a-vis the shareholders but also vis-a-vis the rest of the community affected by its operations such as workers, consumers and the government representing the society. The Apex Court pointed out as far back as in 1950's in Chiranjit Lal Chaudhary vs. Union of India, AIR 1951 SC 41 as under:- We should bear in mind that a corporation which is engaged in production of commodities vitally essential to the community, has a social character of its own and it must not be regarded as the concern primarily or only of those who invest their money in it. 22. In National Textile Workers' Union's case (supra), it was observed by the Apex Court as under:- The concept of a company has undergone radical transformation in the last few decades. The old nineteenth c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of production and that is labour. Then there are the financial institutions and depositors, who provide the additional finance required for production and lastly, there are the consumers and the rest of the members of the community who are vitally interested in the product manufactured in the concern. Then how can it be said that capital, which is only one of the factors of production, should be regarded as owner having an exclusive dominion over the concern, as if the concern belongs to it? A company, according to the new socio-enconomic thinking, is a social institution having duties and responsibilities towards the community in which it functions.... 23. It is settled principle of law that winding up is a remedy of last resort and is not available to wind up and kill a healthy and economic entity. The company is a separate legal entity and juristic person. It cannot be held responsible or liable for acts antecedent to its formation. 24. The petitioners have sought winding up of the respondentcompany enumerating various circumstances which according to them would declare the registration as illegal and unwarranted by law. On the other hand, the irregularities pointed ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. M. A. Khader and to a passage in Volume 6 of Halsbury's Laws of England Third Edition at page 218 which reads :- If the Court thinks that the case, by reason of its complexity or on the ground that there are matters requiring investigation or otherwise, could more satisfactorily be dealt with by an action, the court will decline to make an order on a motion, without prejudice to the right of the applicant to institute an action for rectification. 26. In Marina World Shipping Corpn Limited's case (supra), it was again noticed by the Delhi High Court :- 17. A Company Court under Section 10 of the Companies Act, is a Court of limited jurisdiction and adjudicates and decides only those matters in respect of which the Companies Act has specifically conferred jurisdiction upon it. The procedure for winding up a company is also provided in the Companies Act. Such a process is in the nature of a summary proceeding. In a number of decisions it is held that the Company Court would decline adjudication in a winding up proceeding when the matter agitated involves complicated and disputed questions of fact requiring investigation on facts and evidence in depth. The Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equire a plaintiff to file a replication merely denying the allegations made in the written statement. Failure to file a replication cannot be treated as an admission of the plea in the written statement. Veemsekhara v. Amirthavalliammal, Laxmansing. v. Laxminarayan Deosthan. AIR 1948 Nagpur 127, Bank of Behar Ltd v. Madhusudan Lal, AIR 1937 Patna 4281 (26) To sum up: (1)'replication' and 'rejoinder' have well defined meanings. Replication is a pleading by plaintiff in answer to defendant's plea. 'Rejoinder' is a second pleading by defendant in answer to plaintiff's reply i.e. replication. (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I.A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed. (3) I.As. which do not involve adjudication of substantive rights of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exports during the year were Rs. 33.23 crores. It had in hand export orders to the tune of Rs. 10 crores to be executed upto 30.9.2010. Public money to the tune of Rs. 25 crores by way of Bank loans etc. stands invested in the company. The company generates revenue of crores of rupees to the Government by way of foreign exchange, income tax, sales tax, customs duty, service tax, excise etc. It is a government recognized export house and enjoys worldwide reputation. It is recognized as an approved manufacturer for the supply of woollen textiles to the Defence and other Government agencies with its highest manufacturing capacity. Thus, it is a running and flourishing company. Petitioner No.1 Vinod Krishan Khanna is a retired IAS officer. He had always been employed in government service right from the beginning till his retirement in 2001. After his retirement, he was gainfully employed as Chairman of the National Shipping Board, Government of India. He had absolutely no interest in the concern and even after retirement he never participated in the management of the business. Petitioner No.2 Vimal Krishan Khanna is holding 7% equity share capital in the company. It has also been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act regarding power of attorney and validity of other documents. Fraud has to be specific and pleaded in an eloquent manner. Further, vide order dated 17.8.2006 passed by this Court in CA No.440 of 2006, authenticity of the documents i.e. memorandum of understanding entered between the parties in the month of August 2004 and the power of attorney dated 22.2.1989 being in dispute had been ordered not to be taken into consideration. It would be apposite to notice the order dated 17.8.2006 passed by this Court which reads thus:- Respondent No.5 has filed the present application for directing the production of original of Annexures P.5, P.6, P.8, P.9, P.10 and P.18. The petitioner was directed by this court on 3.8.2006 to produce originals of the said documents within two weeks. Today, an affidavit has been filed by one of the petitioners producing original of Annexure P.5 and certified copy of Annexure P.18 original being an affidavit submitted by Registrar of Companies before the Civil court at Amritsar. Substantially the dispute between the parties resolves around production of original of Annexure P.6 alleged Memorandum of Understanding between the parties and a power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are required to be adjudicated by way of this petition which is not permissible. 32. There is no allegation against the company for which Section 433 of the Act can be invoked. The allegations are against private people who are not parties to this lis and had been deleted from the array of respondents vide order dated 2.11.2006, the relevant part of which reads thus:- It could not be pointed out by the learned counsel for the petitioners as to how and why respondent No. 2 to 8 are necessary or proper parties in the petition for winding up- of a company. In a petition for winding up, the company alone is required to be impleaded. The Directors, other persons or authorities have no role in such petition. Infact, the petitioners have impleaded respondent Nos. 2 to 4 to furnish evidence to the petitioners in support of their averments. Such procedure is not known to law. Consequently, I deem it appropriate to struck off the names of respondent Nos. 2 to 8 from the memo of parties. Ordered accordingly. 33. Additionally, the winding up of the respondent company inter alia has also been sought on the ground that the Registrar of Companies in its written statement before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit. 22. The above extracted observations were approved by the Court of Appeal in the following words: It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction: and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. If an applicant does not act with uberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted. His Lordship rightly pronounced: The Court, for its own protection, is entitled to say: We refuse this writ... without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us. Warrington, L.J. was also of the same opinion. In a concurring judgment His Lordship observed: It is perfectly well settled that a person who makes an ex parte application to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit dated 5.4.2006, the petitioners stated that the documents to the petition were true and correct, they did not produce the originals before the court. With regard to alleged draft MOU/Family settlement, it may be noticed that in view of the respondent challenging the very existence of the said documents on various grounds, this court had passed an order dated 17.8.2006 in CA No.440 of 2006 to the effect that the said documents shall not be taken into consideration for the purposes of this petition. Similarly, the GPA executed by Vijay Krishan Khanna in favour of Vinod Krishan Khanna was also not to be taken into consideration being disputed and the originals having not been produced. It was for the first time on 24.2.2005 that Vinod Krishan Khanna and his brothers expressed their desire to revoke the general power of attorneys executed by them and all the original GPAs were returned to them on that day. It is only after Vinod Krishan Khanna had got in his hands the original GPAs from Siri Krishan Khanna on 24.2.2005 that he came up with a fresh allegation that the GPA of Vijay Krishan Khanna was revoked in 1989. There appears to be no doubt that after perusal of the original GPA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 counter-part, 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 indefinite, the courts in England for long have developed a rule derived from the history and extent of the equity jurisdiction itself and also born out of recognition of equitable considerations generally. This is particularly so as section 35(6) of the English Partnership Act, 1890 also contains, inter alia, an analogous provision for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
