S MANMOHAN SINGH Vs. S BALBIR

JUDGEMENT

(1.) This is a petition under section 397 to 402, sections 539 to 544 read with Schedule II and Section 406 of the Indian Companies Act, (hereinafter called the Act) and Section 53 of the Transfer of Property Act. Respondent No. 6 is Northern India Goods Transport Company (P) Ltd. (hereinafter referred to as company). The authorised capital of the company is Rs. 5 lakhs divided into shares. The petitioners hold 19346 fully paid up shares of Rs- 10.00 each- The petitioner thus hold more than 1/10th of the issued share capital of the company and are competent to file the application under sections 397/399. The company was formed with the object of transporting goods and to carry passengers from place to place by motor lorries etc. It is alleged that the management of the company did not prepare and publish balance sheet tot the years and periods 31st October, 1966 onwards and it has also been alleged that some of the records of the company had been fabricated by the then officials of the company. The gross management and malpractices indulged in by the officers of the company and their oppressive conduct is stated to have led to the flittering away of the company's assets. Company Petition No. 1.6/69 was the first petition filed for the winding up of the company which is pending in this court.

(2.) C.P. S9/69 had been moved by one Ganesh Lal Mohata for winding up the company. In that C.A. 323/70 was moved for the appointment of a liquidator. Pending the consideration of that application this court by its order dated August 28, 1970. directed that the company shall not surrender the tenancy rights in respect of any of the premises on rent with it which will include the office premises as well as the godowns. It is also alleged that in C.A. 434/71 the allegation was made that the New Patiala Goods Booking Agency (which is respondent No. 2 to the present petition) was going to take physical possession of the Naya Bazar Godown. An appointment of a Provisional Liquidator was sought. This court passed an order in C.P. 88/69 on 17-9-1971 wherein it was mentioned that the counsel on behalf of the company had stated that on instructions from Mr. K. L. Kapur (respondent No. 4 in the present petition), that the company is already under injunction not to part with or transfer possession of any of its godowns and the allegation that it has actually transferred the godown is not correct.

(3.) In C-A. 448/71 in C-P- 88/69 wherein apprehension was expressed that the company was going to transfer its tenancy rights of Naya Bazar Godown, this court on 24-9-1971 passed an order restraining the landlord from terminating the tenancy of the company and restraining New Patiala Goods Transport Booking Agency (respondent No. 2 to the present petition) in presence of respondent No. 1 from in anyway dealing with. transferring or surrendering possession of this Naya Bazar Godown of the company bearing Municipal No- 4141 to anyone excepting the company or to attorn to the landlord. An interim Board of Directors was appointed by the order dated 20-3-1972 in C.A. 29/72 which was subsequently substituted by ad-hoc Board of Management appointed by this Court by its order dated 2-9-1972 in C.A. 434/72 in C.P. 89/69 which is still continuing. It is further alleged that the petitioners have come to know that an agreement dated 15th September, 1973 has been entered into between respondent No. 4, the old Managing Director of the company acting for and in the name of the company has appointed respondent No. 1, Balbir Singh, Managing partner of New Patiala Goods Booking Agency (respondent No. 2), an agent of the company and authorised him to carry on the company's business of the transport of goods in godowns situate in the ground floor of the building at Naya Bazar, where the business of the company i.e. booking of goods transporting outstations and receipt of the goods used to be run. The said agreement is alleged to have been entered to give undue preference by payment of amounts to certain persons. The respondent No. 1 has been appointed an agent of the company to carry on the company's business of transport and the profits from the said business are to be appropriated by him in consideration of an alleged loan of Rs. 85 thousands having been paid to the company. Agency agreement is for a period of two years and the company could terminate it only after payment of the loan. The alleged agreement is stated to have been authorised by the Board of Directors but the correctness and genuineness of the contents of minutes recorded in the Minute Book are suspected and disputed by the petitioner. According to them the respondent 1 to 5 knew and expected that respondent No. 1 would earn huge profits from the business under the agreement and that further respondents 1 to 3 have in contravention of the agreement started running the business of respondent No. 2 in his own name.