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TMI Blog2023 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... alior in the year 1986 under Companies Act, 1956 and subsequently its shares were issued to public and it was listed on the Bombay Stock Exchange. The main object of the company as per Memorandum of Association of the Company succinctly was as follows: "1. To acquire, promote, establish and carry on business of manufacturers, importers, exporters, traders, dealers and processors of high protein foods, Soyaflour, Soyamilk, Textured proteins, concentrates, protein-isolates, lecithin Glycerne, Emulsiflers, Oils, De oiled cakes, Refind Oil, Hydrogenated Oils (Vanaspati) Margarine, Peanut Butter, Peanut Milk, Refind Oil form or out of cottonseeds, castor, linseeds, sunflower, soyabean ricebran, groundnut and other types of Edible and Non-Edible essential and non essential, oil-seed and vegetable seeds of all kinds by any type of processing viz Ordinary crushing Solvent Extraction, Chemical or any other process and to utilize the oils and cakes and proteins to be produced therefrom. 2. To carry on the business of manufacture and processing of nutrition foods, cattle-feeds manure, fatty acids soaps perfumes, chemicals and other products in which such oils seeds, oils, oil cakes, and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned NCLT while dismissing the application was required to record just and equitable reason for dismissing the same. He further submits that there may be alternative remedy available to the appellant but fact remains that option was available to appellant to avail remedy which he opted in the present appeal. On this very point he has placed reliance on a judgement of Hon'ble Supreme Court reported in (1992) 4 SCC 196 Bihar State Cooperative Marketing Union Ltd Vs Uma Shankar Sharan and other. Learned counsel for the appellant has specifically drawn our attention to para 6 of the judgement and submits that it was choice of the applicant to prefer remedy under Section 271 and 272 of the Companies Act, 2013 and in any event on the ground of other alternative remedy there was no reason to dismiss the application. 5. On the aforesaid ground the order impugned has been assailed by the appellant. Before proceeding to record finding it is appropriate to note that it is the case of the appellant that Respondent company was declared as 'sick' company under the provisions of SICA. It is also not in dispute that long back in the year 2005 itself the respondent company was declared as sick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany shall be presented by- (a) the company; (b) any contributory or contributories; (c) all or any of the persons specified in clauses (a) and (b) (d) the Registrar; (e) any person authorised by the Central Government in that behalf; or (f) in a case falling under clause (b) of section 271, by the Central Government or a State Government. (2) A contributory shall be entitled to present a petition for the winding up of a company, notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities, and shares in respect of which he is a contributory or some of them were either originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months immediately before the commencement of the winding up or have devolved on him through the death of a former holder. (3) The Registrar shall be entitled to present a petition for winding up under section 271 except on the grounds specified in clause (a) of that section. Provided that the Registrar shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 positio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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