9911796707
TMI Blog2012 (5) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... ess since 2001-02 and thus, it has not earned any income for the last ten years. He states there is no hope or prospect of the petitioner-company doing any further business as stated in its Memorandum of Association. He submits that keeping in view the long duration in which the petitioner-company had not done any business, it would be just and equitable to wind up the petitioner-company. In this context, he relies upon judgments in Surendra Kumar Pareek v. Shree Guru Nanak Oils (P.) Ltd. [1995] 82 Comp. Cas. 642 (Raj.), A. Sreedharan Nair v. Union Hardwares (P.) Ltd. [1997] 89 Comp. Cas. 37 (Ker.) and Registrar of Companies v. Shreepalpur Cold Storage (P.) Ltd. [1974] 44 Comp. Cas. 479 (Pat.). 3. Mr. Beri candidly admits that a dispute in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay its debts and finds that its substratum has gone it is entitled to resort to winding up proceedings after a resolution as provided by section 433(1)(a) and it is difficult to see how such proceedings can be an abuse of process of Court. Where the company is unable to pay its debts, winding up ought generally to follow in public interest, so that the public do not unwarily deal with the company and jeopardise its interests .... The company has satisfied us that it has passed a special resolution that it be wound up by the Court, that it unable to pay its debts and that its substratum has gone so that it is just and equitable that it should be wound up...." 5. On the other hand, Mr. Darpan Wadhwa, learned counsel for Registrar of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge its liability in full within one year - which ability the petitioner admittedly does not possess. 9. The petitioner in its petition has not specifically averred which particular sub-sections it has invoked. However, during the course of arguments, the petitioner has relied upon sub-sections (a) and (c) of section 433. But the process of winding up under section 433 is discretionary. The language of section 433 itself states that a "company may be wound up by the Court" in the circumstances listed in (a) and (f ). 10. In the opinion of this Court, the exercise of power under section 433(a), which has the effect of causing death of a company, should be exercised cautiously. It should be the endeavour of the Court to attempt to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evival rather than affirm the death of a company and for that purpose the court is called upon to make a discreet exercise." 11. In the present case, this Court finds that the petitioner-company has filed counter-claim of Rs. 11,21,63,605 against Prasar Bharti in arbitration proceedings which is still pending adjudication. In the event, the counter-claim of the petitioner-company is allowed, the possibility of revival of petitioner-company cannot be denied. Accordingly this Court in view of the pendency of petitioner company's counter-claim against Prasar Bharti cannot reach the conclusion that the substratum of the company has disappeared and there is no possibility of resumption of business by the petitioner-company. Also, keeping in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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