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2013 (2) TMI 445 - BOMBAY HIGH COURTOppression & mismanagement - Restraining from selling, alienating, encumbering, transferring or creating any third party rights and/or interests in respect of the shares - Company Petition filed by invoking provisions of Sections 397 and 398 - Held that:- Petitioners do not have any cause of action in view of the allegations of misuse of the Company's assets, infrastructure and other resources for the Petitioners own businesses, the R-1 Company's profitability in the absence of R-2 has been not only reduced to NIL rather the R-1 Company's losses are increasing year after year. In such facts and circumstances of the case R-2 was constrained and was justified to call an EOGM for voluntary Winding up of the R-1 Company. No reason whatsoever given referring to this admitted position on record with respect to the shareholding of the Appellants/Original Petitioners. There is force in the contentions so raised. The Board has not at all dealt with the aspect, which, goes to the root of the matter while deciding the maintainability of the Company Petition. Another factor, though recorded by the Board, yet failed to consider that Bipin C. Mehta, who admittedly expired after filing of the Company Petition, had transferred his shares to these legal heirs, just cannot be overlooked 30% overall shareholding of the Appellants/Original Petitioners. The situation was totally different on the date of filing of the Company Petition, specially in view of the admitted position so recorded. The Board ought to have considered the date of filing of the Petition, as well as the admissions so given by the contesting Respondents, before rejecting the Company Petition in such a fashion on the ground of maintainability. The order is contrary to the law and the record. They are awaiting transfer order to be passed by the majority. As this rejection itself goes to the root of the matter as ultimately that resulted into dismissal of the Company Petition even on merits. Therefore, remand the matter by keeping all points open for all the parties to reconsider the matter by giving opportunity to the parties to put up their case on merits also.
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