TMI Blog1979 (1) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ary shares of ₹ 2,500/- each, with the entire capital paid up or credited as paid up. 2. Prior to 1940, Jagannath Gupta used to carry on business under the name and style of 'Jagannath Gupta Co.', as Karta of a Joint Hindu Family business. Subsequently, as a result of the family arrangement, the Joint Hindu Family trading partnership was converted, into a contractual partnership under the name and style of Jagannath Gupta Co.'. It was thereafter converted into a private limited Company in 1940 as aforesaid. 3. Jagannath Gupta and four sons: Bidya Bhushan Gupta, Padam Chand Gupta, Moolchand Gupta and Bhim Sen Gupta. Bidya Bhushan Gupta had a son, Mahadev Prasad who died in 1945 and a daughter, Bimla who was marrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation. 8. On July 19, 1967, Moolchand Gupta filed a petition under Sections 433, 434 and 439 of the Companies Act, 1956, in the High Court of Calcutta. This was registered as Petition No. 158/67. A two fold prayer was made in the petition: (a) The Company be wound up by the High Court; (b) A professional liquidator be appointed. A petition was admitted on August 1, 1967 and directions were given for publication of the advertisements in the Calcutta Gazette and other papers. The petition was fixed for hearing on September 25, 1967 in the said High Court. The allegations made in the petition were as under: 9. That the respondent's allegation that prior to his death, Jagannath Gupta had transferred/bequeathed his 495 shares as afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, failad, neglected and refused to deliver the share certificates in respect of the said 65 shares and 55 shares to Gopal Krishan Gupta and Debi Prasad, Gupta, respectively. 11. It was further pleaded that, at the material time Bidya Bhushan Gupta and Padam Chand Gupta were at the helm and control of the affairs and management of the Company. Between 1940 and 1966, all the properties of the Company, except Premises No. 8, Murlidher Sen Lane, was sold or transferred at under value. It was further contended that the Company has been continuously incurring losses and thus the substratum of the Company has disappeared. The Company had never declared any dividends and is continuously incurring losses. The affairs of the Company are conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 133(1)(a) and (b) of the Constitution, from the High Court, Moolchand Gupta has preferred this appeal against the aforesaid stay order passed by the Division Bench. 16. Although, the High Court, has, in the order under appeal, made extensive observations with regard to the merits of the petition for winding up of the company made by the appellant, the proceedings for winding up have been stayed by the High Court on the ground that on a complaint of the appellant, Moolchand Gupta, a parallel investigation into the affairs of the Company under the provisions of Section 235 of the Companies Act, 1956 is pending. 17. After hearing the learned Counsel on both sides, we are of opinion that the High Court was in error in making the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding up petition. In other words, a petition under Section 35/237/239 may not afford an equally efficacious and alternative remedy as a petition under Section 439 to Court for winding up of the Company. 20. The intention of the Legislature as discernible from Section 243 of the Companies Act, seems to be that when the Court is already seized of the matter, at the instance of party, the Central Government should refrain from taking the initiative. Even where it appears to the Central Government from the report of the investigating inspectors appointed under Section 235/237 that it is expedient to move the Court for winding up of the Company on the ground, that it is just and equitable to wind it up, or that an application for an order und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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