9911796707
TMI Blog2024 (6) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ities have been committed for which he was subjected to prosecution. However, what happened to such prosecution has not been apprised and what would be the result. This is just only to prejudice this Court, such statement has been made. At one stretch the respondents have submitted that appellant while leaving Biharsharif in the year 1986 have sold his three residential properties. How is it relevant for the present case is not forthcoming. The winding up order may also be made if it is approved that the affairs of the Company have been conducted in a manner unfairly and prejudicial to the interest of some shareholders of the Company or its shareholders generally. In considering the various factual aspects of the matter the Court still shall taken into account the circumstances of the Company including whether it is insolvent and whether there is any alternative solution to the dispute such as buying each of the shares of disgruntled and dissatisfied shareholders. These are all the material which was required to be taken note of by the learned Company Judge while deciding Company Petition No. 2 of 2013 with reference to the various contentions raised by the appellant/petitioner. Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decimal whereas market price is of Rs. 15 lakhs per decimal. It is submitted that respondents Directors of the Company have sold 69.7182 decimal for a paltry sum of Rs. 1,45,20,000/-. The aforementioned proceedings have been proceeded without calling for meeting of the shareholders. It is also submitted that filing of Balance Sheet and Annual Return with the Registrar of the Company is without compliance of Section 215 of the Act, 1956. In other words, Balance Sheet was required to be prepared and placed before the Board of Directors for approval and, thereafter, it is to be submitted to the Auditor of the Company for audit and report. Further there is violation of Section 210 of the Act, 1956. In other words, approval of the shareholders had not been obtained. Further there is violation of Section 220 of the Act, 1956. 4. The appellant has also filed I.A. No. 4614 of 2013 for provisional winding up of the Company in terms of Section 450 of the Act, 1956 read with Rule 106 of the Companies (Court) Rules, 1959 (hereinafter referred to as the Rules, 1959 ). There are no material as to what is the fate of I.A. No. 4614 of 2013 and it is not forthcoming from the records. 5. Per contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phic shows and exhibitions, both silent and moving and for the said object the Respondent No. 1 (Company) had purchased about 1 Acres of land in Mouza Hajipur Makdumpur, Mohalla Kandipar, Biharsharif (Nalanda)and constructed a Cinema Hall and started exhibiting pictures. The Respondent No. 1 (Company) at the time of presentation of the Company Petition, is alleged to have removed the Registered Office to some unknown destination and is alleged that there is no trace even of the Registered Office of the Respondent No. 1 (Company). It is alleged that in the course of time the cinema business of the company started incurring losses and since the time of presentation of the Company Petition the cinema hall is lying closed and the company is alleged to have not been carried any business for last several years and therefore, the Respondent Company may be proceeded for liquidation. The Appellants (Company - Petitioners) claims to have been holding 300 Equity Shares of Rs. 100/- each against subscribed and Paid-Up Capital of Rs. 15.12 Lakhs relying on the list of Share Holders attached to the Annual Return dated 29.09.2012 of the Respondent No. 1 (Company). The Appellants (Company - Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts Company Petition No.02/2018 seeking winding up of the Respondent Company under Section 433(c) and (f) read with Section 439 (c) of the Companies Act, 1956 was filed by the Appellants (Company Petitioners). The Appellants in Rejoinder to the Counter filed by the Respondents have alleged that no notice of extra-ordinary meeting were sent to them and it was surprising that on requisitions made by 18 Share Holders, 32 out of total 42 Share Holders were present and had attended the meeting and have further alleged that as per the Balance Sheet as on 31.03.2013, an amount of Rs. 25.00 Lakhs is kept as Fixed Deposit in Canara Bank and a sum of Rs. 31,40,695/- is lying in the Current Account of the Canara Bank whereas an amount of Rs. 61,16,185/- has been shown as Cash in Hand of the Respondent Company without any business activities. The Appellants have also stated in the Rejoinder that after filing of the present Company Petition, the Respondent Company has transferred 5.550 decimals of land to three persons for the small sum of Rs. 12,41,000/-. Facts of the Case as per the Respondents:- The Respondents have challenged the credential of the Appellants for filing the present Company P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Office of the Company was shifted from Mohalla Hajipur, Biharsharif to the house of Ajay Kumar Gupta, Mohalla Sakunat Kalan, P.O. Biharsharif, District Nalanda which was informed to the Register of Company in Form 18. Hence, the allegation of the Appellants regarding disappearance of Registered Office of the Respondent Company is false and the company is still in existence and has been filing its statutory returns to the Register of Company. The Respondent Company has fixed an amount of Rs. 1,92,64,000/- by sale of its land on which capital gain tax of an amount of Rs. 38,18,382/- was also paid by the Respondent company on 18.09.2013. The Respondent company by using the proceeds of sale of part land of the Respondent company, cleared the dues of an amount of Rs. 3,25,124/- of Nagar Parishad, Biharsharif, dues of Rs. 1,44,999/- of Employees' Provident Fund on 25.11.2011, dues of Entertainment tax of an amount of Rs. 6,38,842/-, due of Commercial Taxes Department and dues of Rs.62,936/- of Bihar State Electricity Board and obtained No Dues Certificate from the departments concerned by which the Certificate Case No. 10/2006-07, Certificate Case No. 01/2003-04 and Certificate Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56 since only 32 shareholders attended while ignoring the presence of the appellant. The Registrar Office was either open or shifted after filing of the winding up petition. There are no proof in support of sending notices to the shareholders of holding extraordinary general meeting as is required under Section 172 of the Act, 1956. Resolution under Section 293 of the Act, 1956 does not specify with new businesses. Alternative business undertaken by the respondent Company have not been specified in their counter affidavit. On that respondents in their written submission contended as under: Section 433(c) of the Companies Act, 1956 provides that a company may be wound up by a court if the company does not commenced its business within a year from its incorporation or suspense its business for a whole year. In the facts of the present case, it is not a case that the Respondent Company has not commenced its business within the year of its incorporation and, therefore, in terms of first part of Section 433(c) of the Companies Act, 1956, the order of winding up of the Respondent Company cannot be passed. So far as the second part of the provision of Section 433(c) is concerned, regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, 1956 have been initiated by the Registrar of Company against the Respondent Company since the year 1955. Section 169 of the Companies Act, 1956 provides calling of extra-ordinary general meeting on requisition. The resolution dated 15.02.2008passed in the extra-ordinary general meeting was duly requisition in terms of Section 169 of the Companies Act, 1956. The ground of the Appellants that the main object of the Respondent Company has provided under Clause of Objects of the Company (A) in the Memorandum of Understanding, being related to cinematographic show, diversification could only be done by passing of a Resolution in a meeting of the Shareholders is concerned, it is submitted that as per Clause A(iii) to run a Restaurant, Bar cum Restaurant, Bar, Hotel or Motel or adjacent to the companies premises is also one of the main object of the Respondent Company as per the Memorandum of Association and therefore it cannot be claimed that due to closure of business relating to cinematography, no other main object subsist for keeping the company into existence. The Hon'ble Kolkata High Court in the case of Murlidhar Roy Vs. Bengal Steamship Company Ltd., reported in AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons that company affairs were commenced in the year 1976 whereas its affairs were disrupted and certain loss stated to have caused in the year 2008, in which year respondent - Company proceeded to sell certain movable and immovable properties of the Company. Hence, Section 433 (c) is not attracted. Section 433 (f) of the Act, 1956 provides that if the Court is of the opinion that it is just and equitable that the Company should be wound up, an order of winding up of the Company may be passed. Therefore, question for consideration is whether appellant has made out a case under this provision or not? 13. Common shareholders are granted six rights: voting power, ownership, the right to transfer ownership, a claim to dividends, the right to inspect corporate documents, and the right to sue for wrongful acts. The appellant has made certain specific allegation in support of Company Petition like closure of business in the year 2008 and selling of properties at throw away prices. Respondents have not answered with material. Further establishment of alternative business, from the date of closure of Anurag Cinema somewhere in the year 2008 till date alternative business has not been est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idly they have been served and the appellant and deceased remained absent. It is also alleged that during pendency of the Company Petition, respondents have proceeded to transfer 5.550 decimals of land to three persons for a sum of Rs. 12,41,000/-. Even at this stage requisite formalities have not been completed in respect of disposal of immovable properties of the Company. 16. The respondents have very vaguely defended while alleging that appellant who was Managing Director for the year 1980 to 1986, certain irregularities have been committed for which he was subjected to prosecution. However, what happened to such prosecution has not been apprised and what would be the result. This is just only to prejudice this Court, such statement has been made. At one stretch the respondents have submitted that appellant while leaving Biharsharif in the year 1986 have sold his three residential properties. How is it relevant for the present case is not forthcoming. 17. It is also submitted that respondent No. 3 was appointed as a new Managing Director by the Board of Directors and its duty is not revealed and it is only mentioned till the year 1995. It is further submitted that during respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra are not assisting the respondent Company unless factual aspects are crystal clear to the extent as to whether any fraudulent activities are existing in the matter. Therefore, the appellant has made out a case so as to interfere with the judgement dated 26.11.2015 passed in Company Petition No. 2 of 2013. Accordingly, judgement dated 26.11.2015 stands set aside and Company Petition No. 2 of 2013 stands restored on the file of learned Company Judge. 20. Learned Company Judge is requested to decide Company Petition No. 2 of 2013 afresh within a period of six months. Both appellant and respondents are hereby directed to furnish material information in support of their each of the contentions. The respondent - Company is also required to apprise the learned Company Judge what are the development in respect of company affairs after disposal of certain movable and immovable properties. 21. The respondent Company is also hereby directed to furnish each and every material information in respect of disposal of Company property or properties to the extent in compliance of various provisions like Sections 210, 215 of the Act, 1956 etc. Merely statement that they have duly complied would n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
