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2023 (3) TMI 23 - AT - Companies LawSeeking winding up of company - appellant after lapse of several years from the date when company/industry was declared sick to the reasons best known to it claiming to be contributory under Section 272(1)(b) of the Companies Act, 2013 preferred application for winding up of company - Section 271 (e) and 272(1)(b) of the Companies Act, 2013 - HELD THAT:- Admittedly the appellant before the NCLT had claimed to be contributory under Section 272(1) (b) and invoked the jurisdiction of the NCLT under Section 271(e). On examination of Section 271(e) it is evident that under this provision the Tribunal was having discretionary jurisdiction. Had the Tribunal was of the opinion that it was just and equitable to pass order of winding up of the company, this jurisdiction would have been exercised by the Tribunal. This power is not similar to the power given to the Tribunal under Section 271(a)(b)(c) and (d). Similarly sub-section (2) of Section 273 clearly indicates that if such petition is filed i.e. petition filed under Section 271(e) read with Section 272 (1)(b) of the New Act, onus is on the applicant to satisfy that there is just and equitable ground for winding up of a company. Meaning thereby that if an applicant is not in a position to satisfy on the point of just and equitable ground, the tribunal may refuse to make an order for winding up. Moreover in a situation the Tribunal is of the opinion that some other remedy is available to the applicant and applicant are acting unreasonably in seeking the company to be wound up instead of pursuing other remedy, the Tribunal may refuse to exercise its discretion in favour of such applicant. On perusal of the impugned order it is difficult to infer that the appellant herein was in a position to satisfy the Learned Tribunal that there was just and equitable ground for passing winding up order. Moreover, the appellant may not deny that other remedies were also available to the appellant. Besides this on examination of the order impugned it is evident that one of the secured creditor namely Cargil India Pvt Ltd had filed an objection petition against the application filed by the appellants. Thus, Learned NCLT has committed no error in passing the impugned order - appeal dismissed.
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