Salil K.Roy Chowdhury, J. - (1.) This is a winding up petition presented by a contributory on the 26th of September, 1977, for the winding up of the company on the ground that the substratum of the company has gone, the company has ceased to carry on business for more than a year, and is not in a position to carry on any new business and it is just and equitable to wind up the company.
(2.) The undisputed facts are that the company was incorporated on the 5th of February, 1944, as a banking company as its name suggests and is governed by the Banking Regulation Act, 1949. The objects of the company as set out in the memorandum is verbatim reproduction of the objects which are provided in the various sub-clauses of Section 6(1) of the Banking Regulation Act, 1949. The petitioner alleged that it holds about 22% of the subscribed capital of the company. It appears that the company, by a resolution passed on the 28th of November, 1973, approved a draft agreement regarding the proposed transfer of the undertaking of the company to the United Bank of India Ltd. with its assets and liabilities as on 22nd of December, 1973. The Clause 15 of the said draft agreement provided as follows: " 15. The transferor shall not carry on any business at any time after the date of transfer except for the purpose of going to voluntary winding up. The major part of the amount payable to the transferor by the transferee, in terms of Clause 2 of these presents, shall be kept intact in a term deposit account or account with such nationalised bank or banks and for such period as the board of directors of the transferor may decide till such time as they are required for distribution amongst the shareholders of the transferor. Only such portion shall be kept in current account or in cash as may be necessary for meeting the day to day expenses of the transferor as may be decided by the board. The transferor shall take expeditious steps for going into voluntary winding up before the expiry of a period of three months from the date of transfer. It should be ensured that the liquidator to be appointed by the shareholders of the transferor is assisted in every way so that the ultimate distribution of the net assets of the transferor after meeting all the liabilities of whatsoever nature amongst the shareholders of the transferor is not delayed. "
(3.) It also appears that prior to the said resolution dated the 28th of November, 1973, there was a proposal by the management of the company at its 25th annual general meeting held on the 4th of June, 1969, to transfer its undertaking, together with its assets and liabilities, to the United Bank of India Ltd., prior to its nationalisation and with the consideration money for such transfer to carry on some other business. The petitioner filed a suit in this court for an injunction restraining the company from passing any resolution containing the above proposal. It appears that subsequently the said proposal was dropped by the company by a contract duly executed between itself and the United Bank of India Ltd. on the 4th of December, 1973. The undertaking and the assets and liabilities of the company were duly transferred to the United Bank of India at the close of the business as on 21st of December, 1973, for a sum of Rs. 50,00,905.40. It appears that since the said transfer of the banking business and undertaking of the company with effect from 22nd of December, 1973, the company had invested the said consideration money in "at call and short notice deposit" and been earning interest thereon. The petitioner appears to have all through insisted on the company to send it to voluntary liquidation and distribute the surplus assets among the contributories. In fact, it also made correspondence with the Reserve Bank of India for issue of necessary certificate under Section 44(1) of Banking Regulation Act, 1949. Ultimately, it appears that the notice of the 33rd annual general meeting of the company dated the 25th of August, 1977, was issued for holding the same on the 28th of September, 1977, inter alia, for a special business by a special resolution as would appear from the said notice.;