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TMI Blog1995 (11) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... eased to: A) PASS such order or orders as may be necessary for relieving the petitioners of the oppressive activities of the respondent S.P. Seth Group and the Respondent Company of the prejudicial activities of the said Group: B) SET aside all allotments of shares made in favor of S.P. Seth Group which exceeds 30% of the share capital which was originally held by them and they be directed to transfer the remaining shares to the Petitioners and their nominees against payment on the basis of the face value of the shares. C) THE Respondents be directed to transfer to the petitioners the share-holding of Lakshmiji Sugar Mills Company Limited which they had acquired for themselves; D) REMOVE the Respondent no.3, Shri G.P. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting, of any such person nor have they filed any schedule as required by the Rules. The company has prayed in this application that the petition is incomplete and is liable to be dismissed as the petitioners do not fulfill the qualification required for maintaining a petition under Section 399 of the Act. On 10th December, 1991, the counsel for the petitioner made a statement that he did not wish to file reply of the application. The application came up for disposal before Y.K. Sabharwal, J. on 2nd February, 1993. (4) Sabharwal, J. in his said order came to a definite finding that the petitioners do not hold 1/10th of the issued share capital of the company. They do not claim that they have a right to apply under any other category conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on 18th March, 1993. Thereafter, the petitioner moved an application Ca 562/94, with the prayer that the respondent be restrained from issuing 20,50,000 right shares. While dismissing the application, the Court observed that there is no mala fide act on the part of the company in trying to raise the funds by issuance of right shares in question. The mere fact that the Company had earlier tried to raise funds by issuance of right shares in the year 1993, does not mean that the present decision of the company in issuing the right shares is actuated by any ulterior motives and is not a bona fide exercise of discretion in the interest of the company. The petitioner aggrieved by the said judgment had filed the Company appeal. By a detailed j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of the company in trying to raise funds by issuance of right shares of the company. (9) According to the conclusion arrived at by Bahri, J. the Company is doing well and any coercive method used against the Company shall prove counter-productive. MR. Khanna, learned counsel for the petitioner also submitted that in a petition for winding up, the court can grant any relief. Mr. Khanna placed reliance on National Conduits (P) Ltd. vs. S.S. Arora 37 Comp Cas 786. This judgment was cited to highlight the proposition that the Court has inherent powers to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. (10) Mr. Khanna canvassed that the Court is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company. It is not a proper principle to encourage hasty petitions for winding up of the company without first attempting to sort out the dispute and controversy between the members in the domestic forum in conformity with the articles of association. There must be materials to show when the just and equitable clause is invoked that it is just and equitable not only to the person applying for winding up but also to the Company and all its shareholders. The company court will have to keep in mind the position of the Company as a whole and the interests of the shareholders and see that they do not suffer in a fight for power that ensures between two groups. (13) Mr. Singh, learned counsel for the respondent submitted that there is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the other remedy is available to the petitioners and they are acting unreasonably in seeking to have the company wound up instead of pursing that other remedy. (15) He also placed reliance on Jose J. Kadavil vs. The Malabar Industrial Co. Ltd., reported in 1983 (2) Comp L J 359 (Ker). When the petitioner has an alternative remedy, in this case, the Court has taken the view that winding up must be a last resort. When other alternative remedies are available, the Court ought not to resort to winding up. (16) I have heard learned counsel appearing for the petitioner and the respondent at great length. I have also perused all the pleadings and documents filed by the petitioner carefully. For the detailed reasons stated above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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