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TMI Blog2016 (3) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... amely 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 student was included as a partner in the firm. Petitioner No.1 joined the Indian Administrative Service in 1963 and during this service was the Chief Secretary, Government of Punjab. He retired as Chairman, Inland Waterways Authority of India in the year 2001 and then was working as Chairman, National Shipping Board, Government of India. Hansraj Khanna died in 1989 and a fresh partnership deed was signed between the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 general power of attorneys in favour of Siri Krishan Khanna for the running of the business of the firm M/s Amritsar Swadeshi Woollen Mills in the years 1969, 1978 and 1981. The said general power of attorney was only for exclusive running of the business and for no other purpose. Thereafter, petitioner No.3 had specifically revoked his power of attorney in the year 1989 which had been given in favour of Siri Krishan Kh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 used for registration, Siri Krishan Khanna returned to petitioner Nos. 1 and 2 the GPAs dated 27.12.1997 which had nothing to do with registration of the company. In nut shell, the company was incorporated in complete disregard of the mandatory provisions of sections 13, 15, 26 and 30 of the Act. The petitioners who were the original partners of the firm were left out and had been debarred entry into the premises o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 issued by Registrar of Companies clearly states that the company is registered under Part IX of the Act. The company stands properly incorporated even in view of the provisions contained in Section 565 of the Act because the holding of the petitioners is only 21% as compared to 79% holding of the other members. Section 565 of the Act clearly provides that the assent of the majority of the members is required to get jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 expedient to refer to Section 433(f) of the Act which reads thus:- "433. Circumstances in which company may be wound up by Court - A company may be wound up by the Court- xx xx xx xx xx (a) to (e) xx xx xx xx xx (f) if the Court is of the opinion that it is just and equitable that the company should be wound up." Section 443 of the Act provides for powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 ground for winding-up is under section 433(f) that it is just and equitable to do so, it would be the bounden duty of the petitioners to disclose the material facts as to the alternative remedies which they have availed of or which are available to them. It is only this disclosure which would enable the court to exercise its discretion under section 443(2) and when such a petition is presented on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial 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 would hardly meet with the relevant requirement that there should be the averment that the petitioners had preferred a complaint before the Company Law Board and had availed of the alternative remedy in that connection for remedying the state of affairs by appointment of two additional Government directors. To what extent this averment would have weighed with the court at the time of admission i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shareholders of the company as a whole, interest of the creditors, lenders, workers and the public at large has to be kept in mind. The relief under Section 433(f) of the Act based on just and equitable clause is in the nature of last resort when other remedies are not efficacious enough to protect the general interest of the company. For winding up under section 433(f) of the Act, it has to be estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a petition for winding up a company unless- (a) either the number of members is reduced, in the case of a public company, below seven, and, in the case of a private company, below two; or (b) 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 at least six months during the eighteen months immediately bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuance 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 this section; (ii) a company having the liability of its members limited by any Act of Parliament other than this Act or by any other Indian law (including a law in force in a Part B State), or by any Act of Parliament of the United Kingdom or Letters Patent in force in India, and not being a joint stock company as defined in section 566, shall not register in pursuance of this section; (iii) a company having the liability of its members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in pursuance of this Part of a joint stock company, there shall be delivered to the Registrar the following documents:- (a) a list showing the names, addresses and occupations of all persons who on a day named in the list, not being more than six clear days before the day of registration, were members of the company, with the addition of the shares or stock held by them respectively, distinguishing, in cases where the shares are numbered, each share by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 incorporation is given by the Registrar in respect of any association, there is conclusive evidence that all the requirements of the Act have been complied with in respect of registration and the matters incidental thereto and the association is a company authorized to be registered and is duly registered under the Act. Under Section 397 of the Act, any members of the company who are of the opinion that the affairs of the company are being conducted in a manner prejudicial to public interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tnership 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 Khanna was not the authorized person who had submitted the application for incorporation. (vi) Memorandum of association and articles of association should be only in the hand of the person concerned and not through an attorney. The power had not been given to the attorney to sign the memorandum of association and articles of association. (vii) Sections 13, 15, 26 and 30 of the Act require each subscriber to personally sign the memorandum of association and the articles of assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 others, (2005) 11 SCC 73; (n) Mohammad Laiquiddin and another vs. Kamala Devi Misra (dead) by Lrs and others, (2010) 2 SCC 407. 14. On the other hand, the prayer of the petitioners was vehemently opposed by the respondents in the following terms:- i) The company is registered under Part IX Section 35 of the Act. There is no fraud. There is no irregularity. There is complete compliance of Part IX of the Act. The company court in summary proceedings cannot determine the disputed questions of fact regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Textile Workers' Union vs. P.R.Ramakrishnan and others, (1983) 53 Company Cases 184 (SC); (n) K.S.Mothilal and others vs. K.S.Kasimaris Ceramique (P) Limited and others, (2003) 113 Company Cases 562 (Madras); (o) Suresh Kumar Bansal vs. U.P.Mineral Products Limited, (1996) 87 Company Cases 223 (Delhi); (p) Punjab Distilling Industries Limited vs. Biermans Paper Coating Mills Limited and another, (1973) 43 Company Cases 189 (Delhi); (q) Marina World Shipping Corporation Limited vs. Jindal Exports P.Limited, (2004) 122 Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of an infant is not voidable but void, and it would lead to endless confusion and expense if the Registrar were to take upon himself the duty of ascertaining whether the signatories to the Memorandum were or were not of full age." 19. In Somawanti's case (supra), it was recorded by the Apex Court thus:- "Since evidence means and includes all statement which the court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that that fact can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 Act were not to be read as ejusdem generis with the preceding words of the enactment. (J.A. Raghurama v. East Coast T & S Co., AIR 1958 AP 259. In P.K. Shah v. Rinku Polychem Ltd., (2000) 100 CC 170, it was held that the company petition was filed as a pressure tactic. It is an abuse of process of the Court and widespread publication of the company petition of the acceptance or the admission would cause irreparable loss to the company. In N.M. Shah v. Atul Drug House, 1970 (2) Comp.LJ 274, it was observed that it would be the bounden duty of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esenting 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 century view which regarded a company merely as a legal device adopted by shareholders for carrying on trade or business as proprietors has been discarded and a company is now looked upon as a socioeconomic institution wielding economic power and influencing the life of the people. The view that a company is the property of the shareholders can no longer be regarded as valid. Apart from capital and labour there are other factors which contribute to the production of national wealth; the financial institutions and depositors who provide the additional finance requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 out by the petitioners have been vehemently controverted by the respondent-company by referring to the validity of various documents executed and submitted to the Registrar of Companies for incorporation of the company. It is well recognised that the jurisdiction conferred on the Company Court under Section 433 of the Act is not to enter into the domain of making enquiries about the genuineness of these documents, more particularly once certificate of incorporation had been issued by the Registrar of Companies. The disputed questions of fact fall outside the domain of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 Company Court in such a proceeding has only a restricted jurisdiction which is limited by the provisions of the Act. It cannot act like a civil Court for adjudicating and fixing the liability by scrutinizing and examining in depth the entire evidence placed on record. In this connection reference may be made to a decision of this Court in Maharaja Exports and another vs. Apparels Export Promotion Council reported in 1986 (60) Company Cases 353. In the said judgment this Court reiterated the principle that except in cases where the Companies Act, 1956 confers jurisdiction on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswer 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 replication. (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed. (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 alleged that even prior to incorporation of the company, petitioner No.2 was holding the same amount in the company capital as is clear from the deed of partnership dated 2.4.2004. Still further, petitioner No.3 Vijay Krishan Khanna is a doctor by profession and is permanently residing in USA since 1968. He neither contributed in the management of the concern nor did he ever had any interest in the running of the organization. 30. The petitioners have not made any allegation against the respondent company and all the allegations relate to the period prior to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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 attorney Annexure P.9 dated 22.2.1989 executed by petitioner No.3 in favour of petitioner No.1. I have heard learned counsel for the parties at some length. Annexure P.6 is a memorandum of understanding which was alleged to have been entered upon by the parties in the month of August 2004. Reference may be made to para (x) and (xi) of para No.3 of the petition. The said document is titled as Draft Memorandum of Understanding/Family Settlement and does not bear any date and month but years 2004 as the year. Still further Clause (d) of para No.3 relates to the value of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the civil court admitted that the incorporation of the company was illegal. Further, the respondent through RTI process came to know that the amendments in the written statement were as per and in terms of the dictates of petitioner No.1. Petitioners have failed to disclose all the essential facts necessary for just and proper adjudication of the lis between the parties. Where the conduct of the party approaching the court is not upright, the courts have been circumspect in granting the desired relief to them. In Oswal Fats and Oils Limited's case (supra), it was observed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 Court - that is to say, in absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him." 23. This Court and different High Courts have repeatedly invoked and applied the rule that a person who doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 GPAs, the ROC was satisfied that S.K.Khanna was authorized to sign on behalf of V.K. Khanna and his brothers that he registered the company and issued the certificate of incorporation on 24.1.2005. 35. Now, adverting to the judgments relied upon by learned counsel for the petitioners, in Sri Arthamari Transport (P) Limited's case (supra), the issue was of a new company formed on the basis of subscription to MOA and AOA. In that case, someone was mentioned as Director in the MOA/AOA but he was not holding the qualification shares. So it was held that he was not director of the company. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 dissolution of partnership by the court. Section 44(g) of the Indian Partnership Act also contains the words 'just and equitable'. 37. Section 433(f) under which this application has been made has to be read with section 443(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 would up instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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