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2012 (12) TMI 351 - HC - Companies LawWinding up of Company - when alternate remedy is available - held that:- The word 'may' appearing in Sec 443 (2) has been construed to be read as 'shall' making it mandatory for the Court not to pass an order for winding up if there is an alternate remedy available to the petitioner. further winding up of a domestic or family company on just and equitable rule is permissible if there is a justifiable lack of confidence in the conduct and management of the company's affairs, grounded on the conduct of directors in regard to company's business. Misconduct of a petitioner that results in deadlock or breakdown cannot be a ground to wind up a company under the just and equitable clause. A party cannot take advantage of his own wrong, to ask for winding up under 433(f) of the Act. As the words 'just and equitable' themselves suggest the Court must be satisfied with the allegations of the petitioner that it is just and equitable to wind up a company". In the present case Business of the company is being run; it is profitable; one group in fact wants to out-buy the other. Both of them want to steer the wheel of the company. The parties have also not explored the alternative remedy either under the domestic forum or under Sections 397 & 398 of the Act. As decided by Supreme Court in Hind Overseas (P). Ltd. Versus Raghunath Prasad Jhunjhunwalla [1975 (10) TMI 71 - SUPREME COURT OF INDIA] is that the company should not be wound up merely because of disputes which have arisen between the two groups of shareholders; if the same can be resolved by alternate modes and these alternate modes must be exhausted in the first instance; the winding up of a company is the extreme and last remedy and should be resorted to only as a final resort; this principle is fully applicable in the instant case. It is the interest of the company which is to be watched first; the personal prejudices and personal vendetta of one group qua the other cannot become the basis of a winding petition; pressure tactics cannot be applied - On all counts petition has no merit and is accordingly dismissed with costs of Rs. 25,000/- .
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