ADVANCE TELEVISION NETWORK LTD Vs. REGISTRAR OF COMPANIES

JUDGEMENT

(1.) This appeal under Section 483 of the Companies Act, 1956 is preferred against the order dated 4 th July, 2011 of the learned Company Judge dismissing Co.Pet.316/2006 filed by the appellant under Section 433(a) r/w Section 439 of the Act for voluntary winding up of the appellant Company. Notice of the appeal was issued. Finding that the learned Company Judge had also heard Prasar Bharti, though not a party, notice was issued to Prasar Bharti also. The counsels have been heard.

(2.) The appellant Company sought its voluntary winding up, pleading that it was engaged in the business inter alia of telecasting T.V. Serials/Programms and had entered into an agreement with Prasar Bharti; that it suffered net loss of Rs. 41,90,576/-; that disputes also arose with Prasar Bharti which are subject matter of arbitration; that since 11 th March, 1999 no business had been done; that in the circumstances the Directors of the appellant Company in the meeting held on 5 th September, 2006 resolved for winding up of the appellant Company; that an Extraordinary General Meeting of the shareholders was also held on 9 th October, 2006 which approved of the said course.

(3.) The learned Company Judge has dismissed the petition observing/holding, i) that winding up under Section 433 is a discretionary act of the Court, though to be guided by factors such as solvency, ability to pay debts and interest of creditors and that the Court should not exercise its discretion to wind up unless compelling reasons exist; ii) that Prasar Bharti had opposed the petition and pleaded that the same was only to defeat the claims of Prasar Bharti against the appellant Company and which are subject matter of arbitration; iii) that the appellant had also concealed that it had in the said arbitration proceedings filed a counter claim of Rs. 11,21,63,605/- against Prasar Bharti's claim of Rs. 4,54,74,256/-; iv) that if the said counter claim of the Company succeeded, the possibility of revival of the appellant Company could not be ruled out; v) thus it could not be said that the substratum of the appellant Company had disappeared or that there was no possibility of resumption of business. The learned Company Judge in this regard has relied on New Swadeshi Mills of Ahmedabad Ltd. Vs. Dye-Chem Corporation,1986 59 CompCas 183 and Bombay Metropolitan Transport Corporation Ltd. Vs. Employees of Bombay Metropolitan Transport Corporation Ltd.(CIDCO), 1991 71 CompCas 473.