V K CHITHARANJAN Vs. NARAYANA DHARMA PARIPALANA YOGAM

JUDGEMENT

(1.) The averments in the Company Petition reveal that reliefs of oppression and mismanagement under Sections 397 and 398 as well as winding up under Section 433(f) of the Companies Act, 1956 are sought. Only the Company Law Board was vested with the jurisdiction to grant reliefs under Sections 397 and 398 of the Companies Act, 1956 when the Company Petition was filed. Nevertheless this Court retained jurisdiction to grant relief of winding up at the time of institution of the Company Petition which was lost much later only. The Company Judge has rejected the Company Petition at the threshold itself relying on Section 443(2) of the Companies Act, 1956 which is extracted hereunder:

(2.) It was inter alia contended that the petitioner in the Company Petition is not a contributory as defined under Section 428 who alone can maintain a company petition under Section 439(1)(c) of the Companies Act, 1956. The petitioner in the Company Petition asserts that he is a contributory of S.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 as held in In re S.N.D.P.Yogam, Quilon [1970 KLT 365]. Suffice it to say that the matter needs a deeper probe after the evidence is let in by the parties particularly in the context of P.C.Aravindan v. M.A.Kesavan & others,1973 KerLT 70. An advertence to Clause 4 of the Memorandum of Association as well as Clauses 4, 71, 72 etc. of the Bye-laws of S.N.D.P.Yogam may also be essential in the process.

(3.) The following observations in M/s.World Wide Agencies Pvt. Ltd. and another v. Mrs.Margarat T.Desor and others, 1990 AIR(SC) 737 at a time when the jurisdiction vested in the High Court only are apposite: