TMI Blog2023 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on agents, representatives, selling agents, purchasing agents, distributers and broker, exporter, importers, manufacturers, cultivator farmers, processors, refines, of soyabean, groundnut, sesame seed, all other oil seeds edible and non-edible oil, Vanaspati oil cakes, proteins and protein foods, substances or residue or by-products of all goods aforesaid. 4. As on 31st March, 2019 the share capital of the Company was 9,93,44.485. It is the case of the appellant that the company was declared as sick company by order dated 21.12.2005 by Board of Industrial and Financial Reconstruction (BIFR). Finally in the month of August, 2016 the Bombay Stock Exchange delisted the company under the Securities Exchange Board of India (Delisting of Equity Shares) Regulation 2009. It has been further claimed that the turnover of the company during the financial year 2017-18 from the business operation had come to only 3,72,583 and the total accumulated accounted loss was amounted to Rs.24,14,94,040/-. Since there was no possibility of the revival of the company the appellant being promoter of the company namely Premier Proteins Ltd filed an application under Section 271(e) and 272(1)(b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck company/industry under Section 424(G). However, to the reasons best known to the appellant no such step was taken. The 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 (hereinafter referred to as New Act) preferred application for winding up of company. The said petition was filed under Section 271 (e) of the New Act. However, learned NCLT in view of the provisions contained in sub-section (2) of Section 273 of the New Act considering the fact that the appellant was having other remedy that too under IBC 2016 did not interfere with the matter and rejected the application as disposed off. It would be profitable to incorporate Section 271, 272(1) and 273. 271. Circumstances in which company may be wound up by Tribunal. A company may, on a petition under section 272, be wound up by the Tribunal, (a) if the company has, by special resolution, resolved that the company be wound up by the Tribunal: (b) if the company has acted against the interests of the sovereignty and integrity of India, the security of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction unless the company has been given a reasonable opportunity of making representations. (4) A petition presented by the company for winding up before the Tribunal shall be admitted only if accompanied by a statement of affairs in such form and in such manner as may be prescribed. 166 (5) A copy of the petition made under this section shall also be filed with the Registrar and the Registrar shall, without prejudice to any other provisions, submit his views to the Tribunal within sixty days of receipt of such petition. 273. Powers of Tribunal. (1) The Tribunal may, on receipt of a petition for winding up under section 272 pass any of the following orders, namely: (a) dismiss it, with or without costs; (b) make any interim order as it thinks fit. (c) appoint a provisional liquidator of the company till the making of a winding up order; (d) make an order for the winding up of the company with or without costs; or (e) any other order as it thinks fit: Provided that an order under this sub-section shall be made within ninety days from the date of presentation of the petition: Provided further that before appointing a provisional liquida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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. However, a submission was made by learned counsel for the appellant before the NCLT that during proceeding said creditor had raised no objection. In normal course it was mandatorily required on the part of the appellant to implead such creditor/objector as party in the present appeal. However, to the reasons best known to the appellant the said objector/creditor was not impleaded as party in the present appeal. We are of the opinion that besides lack of merit in the appeal the appeal also deserves to be rejected on the ground of non-joinder of parties. The order further reflects that the applicant before the NCLT had also filed a petition i.e. CA No.29/2021 dated 30.11.2021 seeking withdrawal of the main application i.e. CP No.224/2019, however, subsequently the said application was withdrawn. 7. So far as judgement relied upon by the learned counsel for the appellant on Bihar State Cooperative Marketin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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