TMI Blog1990 (9) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... as established and as mentioned under clause 3 of the memorandum of association are : "(1)to manufacture, buy, sell, assemble, import, export and deal in opthalmic products of all kinds, including lenses, frames, their accessories and components; (2)to manufacture, buy, sell, import, export and deal in anamical orthopaedic and surgical instruments and appliances like catheters, surgical gloves and all other requisites for hospitals, patients and invalids." The petition for winding up has been filed under section 433( c ) and ( e ) and ( f ) read with section 439 of the Act praying that the company be wound up. It is alleged in the petition that the value of the plant and other imported machineries, etc., was about Rs. 26 lakhs and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Kushwaha group acting against the interest of the company. The petitioner has admitted that some balance-sheets have been filed by G.S. Kushwaha in C.P. No. 122 of 1983 when the question regarding balance-sheets, etc., was raised. It appears that there are two groups in the company, namely, "Sandhu group" and "Kushwaha group". The shareholding of Kushwaha group is 75% and that of Sandhu group is about 25%. The petitioner belongs to Sandhu group. In answer to show cause why the petition be not admitted, reply has been filed by the company. It is, inter alia , alleged in the said reply that the petitioner along with her other close relatives, namely, S.S. Sandhu, Shiela Sandhu, Joya Mohan and Puma Lumba, filed the petition under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others, admittedly a sum of Rs. 6,78,578.62 which has not been paid by the petitioner, her mother and her sisters since 1983. It is then averred that Sh. P.N. Khanna, a retired judge of this court made an award on February 19, 1990. A copy of the said award has been placed on the record according to which the company is a creditor and the aforesaid amount is payable by Industrial Aids, a partnership firm, of which the petitioner is a partner. She was also one of the parties in arbitration proceedings. It is further averred in the additional affidavit that the company has instituted a suit being suit No. 2600 of 1986 against Chinar Exports Ltd. in which the petitioner and her brother, father, mother and sister-in-law are the majority shareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and oppression was withdrawn unconditionally on July 12, 1989. It is also to be kept in view that the petitioner in C.P. No. 122 of 1983 and the present petitioner belong to the same group, namely, the Sandhu group. Bearing in mind these factors, this court has to consider the ground and the facts on which the winding up is being based. Though various allegations have been made in the petition and a number of grounds for winding up have been taken, the main ground pressed by counsel for the petitioner is that the company is liable to be wound up as it has suspended its business since 1983. A company can be wound up if it does not commence its business within one year from its incorporation or suspends its business for a whole year. In sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 122 of 1983 for nearly six years and was under an order of restraint which stood vacated only when the said petition was dismissed as withdrawn. As against this, the petitioner has not been able to show any substantial liability of the company. The dispute between the Sandhu group and the Kushwaha group seems to be the reason for the suspension of the business of the company. Mr. Jain placed strong reliance on the averments made by the company in C.A. No. 9 of 1987 filed by it in C.P. No. 122 of 1983 inter alia , averring that the company is not carrying on any commercial or industrial activities since 1983 and, therefore, all the plant, machinery, fixtures and furniture are now of no use and are deteriorating day by day. Reliance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a view to pressurise the company. I have also gone through the orders made from time to time in C.P. No. 122 of 1983. The petitioner, on the facts and circumstances of the case, has failed to establish the ground under section 433( c ) of the Act. The aforesaid discussion on the main ground also shows that there is no substance in the half-hearted contention put forth on behalf of the petitioner that the company is unable to pay its debts and is liable to be wound up under section 433( e ) of the Act. That contention was also based solely on the averments made by the company in C.A. No. 9 of 1987 which aspect has been dealt with above. Apart from that, the petitioner did not show how the company is unable to pay its debts. Consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X
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