Mitter, J. - (1.) This is an appeal from an order refusing to stay proceedings in a company petition No. 22 of 1965 for winding up of the appellant-company.
(2.) The facts are as follows: The company, the appellant before us, is a private limited company with a nominal capital of Rs. 1,00,000 divided into 100 shares of Rs. 1,000 each. The paid up capital of the company is Rs. 90,000. The main object of the company is to carry on work of mechanical and constructional railway and electric engineers. Under its articles of association the company is to have no directors and its business is to be conducted by the members who are to exercise all the powers and functions of the directors. There were originally three members each with 30 shares. Each member is to have one vote and the quorum at all meetings is two members present personally. Under the articles Profulla Kumar Dutta, the eldest of the three brothers, who are members of the company, was competent to sign in the name of the company, to receive moneys, cheques, etc., on behalf of the company and in short was to exercise all the financial powers of the company. He was also to act as chairman of the meetings. There can be little doubt that for some time past the brothers have not been pulling on well together. Subol Chandra Dutta, one of the brothers, purported to transfer his shares to Profulla Kumar Dutta. Subol Chandra Dutta has, however, filed a suit challenging the validity of the transfer and the suit is still pending. The eldest brother, Profulla Kumar Dutta, who became the holder of 60 shares on the strength of Subol's transfer, himself transferred five shares to his wife in or about June, 1964. Originally the registered office of the company was at No. 137, Canning Street, Calcutta. Profulla Chandra Dutta has purported to transfer the same to No. 7, Hingan Jamadar Lane which is also his residence and the place where the workshop of the company is situate. The respondent, Pranay Kumar Dutta, the second brother, presented a petition for winding up of the company alleging, inter alia : (a) Profulla Kumar Dutta has made it impossible to carry on the business of the company with profit. He has started a firm of his own under the name and style of P.K. Dutta & Co. and selling the same at a considerable profit through his own firm with the result that the profits of the company are all being swallowed up by the firm of P.K. Dutta & Co. (b) Profulla Kumar Dutta is not holding any proper meeting of the company and the youngest brother is not being given due intimation of the holding of a meeting. (c) Pranay Kumar who was in the employ of the company and used to draw salary from it has not been paid his salary for a long time past with the object of squeezing him out of the company. (d) Profulla Kumar Dutta purported to transfer the registered office of the company without the knowledge or consent of Pranay Kumar Dutta. Profulla has also managed to defraud the other brother, Subol, dishonestly of the shares held by him. (e) The company being a family concern and the members thereof having lost confidence in each other it will be a just and proper case to wind it up.
(3.) The petition of Pranay was admitted by the learned company judge on February 17, 1965, and notice of presentation of the petition was directed to be published in newspapers and other usual directions given.;