IN THE MATTER OF J&K INDUSTRIES LTD , JAMMU Vs. STATE

JUDGEMENT

(1.) THIS is an application made by the Registrar Joint Stock Companies for compulsory winding up of the Company by the Court or failing that under the supervision of the Court.

(2.) THE first question for consideration is whether the winding up can be ordered by the Court. A preliminary objection is raised on behalf of P. Premnath and on behalf of the voluntary Liquidator that the Registrar has no locus standi to ask for the winding up by the Court. In reply to this preliminary objection the counsel for the applicant has drawn my attention to S. 166, Cl. aa of the Companies Act. Clause aa of the said section lays down that the Registrar shall not be entitled to present a petition for winding up of a company except on the ground that from the financial position of the company as disclosed in its balance -sheet or from the report of the Inspector appointed under, S. 138 it appears that the Company is unable to pay its debt and unless the previous sanction of the government has been obtained to the presentation of the petition. It is true that the petitioner had satisfied these conditions but the company had already gone into voluntary liquidation and the Registrar could not, after it had gone into voluntary liquidation, apply to the Court for taking winding up proceedings against the company.

(3.) SECTION 166, Cl. aa is applicable only when the company is carrying on its business and it appears to the Registrar that it is not able to pay its debt, the Registrar may apply to the Court after taking necessary sanction from the Government for the winding up of the company. If the company is already wound up in my opinion, the Registrar is not competent to take any action in the matter. The learned counsel appearing on behalf of Pandit Premnath and the voluntary liquidator have cited a ruling of the Bombay High Court reported as - In re, Peoples International Travel, Education & Commercial Co. Ltd., AIR 1941 Bom 25 A in which it was held that S. 215 is exhaustive of the persons who are entitled to make applications and the Registrar not being one of them has no locus standi to apply for the removal of the voluntary liquidator. I think this ruling is not applicable to the present case as there is no question of removal of the liquidator in this case. The question for consideration in this case is whether after the company has gone into liquidation the Registrar can challenge that liquidation and apply to the Court that the company be wound up compulsorily. The learned counsel for the petitioner has not been able to show any provision in the Companies Act nor any ruling on the basis of which it can be held that after the company has gone into liquidation the Registrar can ask for compulsory winding up of the company. The only section which has been relied upon is 166 of the Companies Act in regard to which I have stated that that section is applicable only in case the Company is carrying on its business and not after it has gone in voluntary liquidation.