NARESH KUMAR AGGARWAL Vs. DADENDER KUMAR MITTAL

JUDGEMENT

(1.) The appellants filed a petition under Sections 433(a), (e) and (f) read with Section 439 of the Companies Act, 1956, for winding up of appellant No.2 company. A petition under Sections 397 and 398 of the Companies Act was filed before the Company Law Board, prior to the filing of the aforesaid petition , and certain interim orders were passed by the Company Law Board in the proceedings before it. The said petition before the Company Law Board was however subsequently withdrawn by the appellants. The appellants contend that since they subsequently came to the conclusion that survival of the company was not in the interest of its share holders, the petition was filed before this Court.

(2.) Appellant No.1 had contended that he is holding more than 99% shares and he is no longer interested in the running of the Hotel at Mussorie which was the purpose of incorporation of defendant No.2 company and therefore appellant No.2 company should be wound up on just and equitable' ground. The petition of the appellant was, however, dismissed by the learned Company Judge vide the order dated 24.5.1996.

(3.) Mr. Satish Chandra, learned counsel for the appellants contended that a sum of Rs. 5,73,000.00 was given by Appellant No.1 to respondent.No.1 in good faith as there was a deed of partnership between appellant No.1 and respondents 2 and 3 for the construction of a Hotel. In terms of ,the Memorandum of Association of appellant No.2 company Kamini Hotel Pvt. Ltd., appellant No.l and respondents 2 and 3 were the initial subscribers to 200 shares each totalling to 600 shares. Subsequently 44,000 shares of the face value of Rs. 10.00 each were stated to have been issued in favour of respondent No.l on 3.10.84 in lieu of the amount of Rs. 5,73,000.00 advanced earlier. Reliance was placed on the certified copy of the Form No. 32 in terms whereof the aforesaid equity shares were allotted to appellant No.1. The form is dated 4.10.94 and is alleged to bear the signatures of Respondent No.2. The date of the allotment in the said form is stated as 3.10.94. However, this form; was filed with the Registrar of Companies, Delhi and Haryana on 20.4.95. It may be stated that there is no dispute about the fact that the plot in question on which the Hotel is running was purchased on 9.7.91 in the name of respondent No.1. It is, however, contended by the learned counsel for the appellants that this was an inadvertent oversight and the same is recorded in the partnership deed dated 4:3.1992 in terms whereof appellant No.1 on the one hand and respondents 1 and 2 on the other are absolute owners of the half share each of the land. Appellant No.2 company was incorporated on 15.5.1992. The shares are thus stated to have been allotted in terms of the Articles of Association for which admittedly no notice of allotment was issued.