- (1.) This company-petition was admitted and advertised by order of this court and objections were invited regarding the winding up of Shree Guru Nanak Oils Private Limited (for brevity "the company"). The Rajasthan Financial Corporation has filed objections opposing the winding up of the company,
(2.) It is submitted by Shri V. L. Mathur, learned counsel, that the company was incorporated under the Companies Act on January 2, 1976, as a private limited company with its registered office at Jaipur. The petitioner was inducted as a director of the company on September 16, 1976. After formation of the company, for a variety of reasons, it could not commence its business. The auditors' report dated December 31, 1977, and the profit and loss accounts, annexures 2, 3, 4 and 5, clearly substantiate that the company could not start any activity. Non-petitioner No. 4, the Registrar of Companies, therefore, filed a criminal case against the petitioner as well as non-petitioners Nos. 1, 2 and 3, who were the directors of the company, in the court of the Chief Judicial Magistrate (Economic Offences), Jaipur City, under Section 160/220(3) of the Companies Act, 1956. It was submitted in the court that one of the directors, Hari Singh and Smt. Prabhjot Kaur, ceased to be directors with effect from September 22, 1977. Their resignations were submitted to the Registrar of Companies. The copy of certificate, in Form No. 32 pursuant to Section 303(2), has been filed and marked as annexure 6. The Chief Judicial Magistrate held the petitioner as well as non-petitioner No. 1, the company, guilty under Section 220(3) and imposed a fine of Rs. 250 each on all the counts. The resignation of the above two directors was accepted. In the meanwhile Hari Singh expired on September 9, 1986, but the whereabouts of the other two directors, respondents Nos. 2 and 3, were not known and, as such they were declared absconders, vide order dated September 9, 1986, and proceedings under Section 299 of the Criminal Procedure Code were ordered to be taken. Annexure 7 is a certified copy of the judgment dated January 29, 1987. It is further submitted that the company had taken loan from the Rajasthan Financial Corporation, Jaipur. The Rajasthan Financial Corporation took possession of the unit on August 20, 1980, and auctioned the factory premises of the company along with machinery, etc., and realised Rs. 3,01,001 by auction. It is submitted that the petitioner alone is now the director of the company. It is submitted that these facts are not denied by the Rajasthan Financial Corporation also in the objections raised. It is pointed out that the company has to be wound up, since as required by Sub-clause (c) of Section 433 of the Companies Act, 1956, it did not commence its business within a year from its incorporation, and the business stands suspended since several years. As per Sub-clause (d) of the section mentioned above, the number of members could not have been below 2, but presently the petitioner is the only director. Since the company is technically in existence, the petitioner is always in danger of criminal prosecution and several other responsibilities lie upon him in accordance with the various provisions of the Companies Act, which he is not in a position to fulfil. It is, therefore, submitted that keeping in view the provisions of Sub-clauses (c) and (d) of Section 433, the company should be wound up. Learned counsel has placed reliance on the order dated November 15, 1991, passed in S. B. Company Petition No. 4 of 1987 (Kuljeet Singh v. Anne Prince Steel Mills Pvt. Ltd.) in which the order of winding up was passed in similar circumstances.
(3.) It is submitted by Shri B. L. Samdariya, learned counsel for the Rajasthan Financial Corporation, that this petition for winding up has been filed only with a view to avoid payment of the balance amount of the loan outstanding against the company, It is submitted that the company took a loan of Rs. 4,99,000 from the Rajasthan Financial Corporation. Since the company failed to pay the loan amount with interest, the Rajasthan Financial Corporation was constrained to take possession of the unit on August 20, 1980, and realised Rs. 3,01,001 by auctioning the factory premises of the company. After crediting the above sum, still a sum of Rs. 3,41,538 is due and payable by the company to the Rajasthan Financial Corporation. It is contended that in the aforesaid circumstances, it seems that this winding-up application has been filed to shirk the liability and responsibility of paying the aforesaid balance of loan amount to the Rajasthan Financial Corporation. It is further contended that the application is not maintainable as the person who has made the application is himself a director of the company. A reply to the petition has also been filed by the Registrar of Companies, In his reply, it has been stated in para 14 that if the company cannot carry on its business activities only in those circumstance it would be proper to pass a winding-up order.;