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TMI Blog2019 (5) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... .N.D.P.Yogam which is a non-trading company to which the Companies Act, 1956 does apply. Clause (4) of the Memorandum of Association of the S.N.D.P.Yogam speaks both of 'liability' as well as 'shares' making it ambiguous warranting an adjudication as to its constitution. The Memorandum of Association does not give any indication of S.N.D.P.Yogam being a company limited by guarantee. A composite company petition of the nature filed is perfectly maintainable and this Court had the jurisdiction to grant the relief of winding up at the time of its preferment. We shall not be misunderstood as holding that a case for winding up the company has been made out though the impugned judgment to the extent it holds that this Court lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies Act, 1956 which is extracted hereunder: 443. Powers of Tribunal on hearing petition (1) xxxx xxxx xxxx xxxx (2) Where the petition is presented on the ground that it is just and equitable that the company should be wound up, the Tribunal may refuse to make an order of winding up, if it is of the 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. The above provision only means that a company shall not be ordered to be wound up if the Court is of the opinion that other remedies like oppression and mismanagement are available. The remedy of winding up of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wide Agencies Pvt. Ltd. and another v. Mrs.Margarat T.Desor and others [AIR 1990 SC 737] at a time when the jurisdiction vested in the High Court only are apposite: We are in agreement with the High Court that the petition must proceed up to certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the Court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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