Court : Mumbai
Reported in : 45CompCas534(Bom)
..... which the court follows is that if there is opposition to the making of the winding-up order by the creditors the court will consider their wishes and may decline to make the winding-up order. under section 557 of the companies act, 1956, in all matters relating to the winding-up of the company the court may ascertain the wishes of the creditors. the wishes of the shareholders ..... us and that is : whether the right of the petitioning-creditor should give way to the wishes of other creditors that the company should not be wound up. 33. section 557 of the companies act, 1956, provides that in all matters relating to the winding up of a company, the court may, among other things, have regard to the wishes of the creditors or contributories of the ..... of them majority of the creditors, and if those wishes are reasonable, then the court can properly refuse at their request to make a winding-up order.' 52. the supreme court had occasion to examine section 557 of the companies act, 1956, and how far the wishes of the creditors may be considered in madhusudan gordhandas & co. ltd. v. madhu woollen industries pvt. ltd ..... mere statements and cannot be of any avail for the purpose of overriding the petitioner's right to an order for winding-up. 57. now, the words of section 557 of the companies act, 1956, are to out mind very clear. the court has to have regard to the wishes of the creditors and those wishes must be proved to the court by any .....Tag this Judgment!
Court : Mumbai
Reported in : 2000(5)BomCR14
..... he submits that, by virtue of section 441(2), the term 'after the commencement of the winding up' necessarily means after the presentation of a petition for winding up. he submits that the companies act attaches considerable significance to the very presentation of a petition for winding up. he submits that this is clear from the provisions of section 442 where, on the presentation ..... the presentation of a petition for winding up of a company has very serious consequences. he submitted that section 441(2) of the companies act provides that a winding up of company shall be deemed to commence at the time of presentation of the petition for winding up. he submitted that there is thus a deeming provision whereunder the winding up of company takes place from the date ..... , reported in (1974) t lr 1884. in this case the question was whether leave under section 446 of the companies act was necessary to continue or commence any suit during the pendency of a petition for winding up where no winding up order had been passed. in this context the court held that the deeming fiction under section 441(2) could not ..... of the presentation of the petition for winding up. he submitted that such a deeming provision .....Tag this Judgment!
Court : Mumbai
Reported in : 2002(1)ALLMR901; 2001(4)BomCR84; 106CompCas52(Bom)
..... which emerges from the various provisions contained in the companies act, 1956 for winding up, there is no reason to exclude a secured creditor from the purview of petitioning creditors who can move a company petition for winding up. section 433 of the companies act is a part of chapter ii of part vii which deals with winding up by the court. section 433 furnishes a list of ..... circumstances in which a company may be wound up by the court. section 434 provides a deeming definition of when ..... too late to argue that a secured creditor cannot successfully prosecute an application for winding up, especially in view of sub-section (2) of section 439 of the companies act, 1956, a provision which was lacking in the indian companies act of 1913. apart from the fact that for the purpose of winding up, the term 'creditor' includes a secured creditor, there are judicial precedents ..... 7. at the outset, it must be noticed that section 439 of the companies act, 1956 itself postulates that the petition for winding up of a company may be presented by a secured creditor. under clause (b) of sub-section (1) of section 435 a petition for winding up of a company can be presented by any creditor or creditors including any contingent or prospective creditor .....Tag this Judgment!
Court : Karnataka
Reported in : 112CompCas391(Kar)
..... court in the case of airwings pvt. ltd. v. viktoria air cargo gmbh : air1995kant69 . the court has observed (pages 720-22) : 'ii. when a winding up petition is filed seeking winding up of the company under section 433(e) of the act and from the material available from the petition and any other additional material which the court may require the petitioning-creditor to furnish if ..... . orissa construction corporation ltd.  97 comp cas 345 was pleased to state (see headnote) :'on a petition for winding up a company under section 433(e) of the companies act, 1956, the principles on which the court acts are (1) that the defence of the company is in good faith and one of substance ; (2) that the defence is likely to succeed in point of law ..... must in each case exercise its discretion in deciding whether in the circumstances of the case, it would be in the interest of justice to wind up the company. this is also manifest from section 443 of the act which leaves it in the discretion of the court to make any one of orders envisaged therein. section 443 also envisages relevant consideration in which ..... remedy for realisation of his debt, a creditor is not precluded from seeking remedy under the companies act as well by asking for the winding up of the company and realisation of all the assets of the company for the due discharge of all its liabilities. the object of the winding up petition being entirely different, the remedy provided under section 433 has been held to be discretionary .....Tag this Judgment!
Court : Allahabad
Reported in : 132CompCas749(All); (2006)6CompLJ519(All); 72SCL191(All)
..... and if necessary file a petition in the high court of judicature at allahabad under section 466/518 and other applicable provisions of the companies act for seeking permanent stay of voluntary winding up of the company.3. the company was incorporated on 18.4.1984 in the name of charisma investment (india) limited and. commenced its business on 24.1.1985. ..... time on such terms and conditions as the court thinks fit.10. shri r.p. agarwal submits that the companies act, 1956 does not provide for rescinding the resolution passed by the members of the company to voluntary wind up the company. the company can, however, in the circumstances when it is just and beneficial to do so either bring a scheme under ..... report under section 256(2) in a voluntary winding up.16. buckley on the companies acts, 14th edition also explains the power of the court under section 307 of the companies act, 1948, which refers to powers under section 226 of the act to stay or restrain proceedings against the company after the presentation of winding up petition and before winding up order is made. the order, however, according ..... have interpreted these powers to enable the management to revive the company by permanently staying the voluntary winding up proceedings.14. the pennlngton's company law, vth edition compares the powers of the court in a voluntary winding up with compulsory winding up at page 885, as under:there is a useful provision in the companies act 1985, however, by which the aid of the court may .....Tag this Judgment!
Court : Delhi
Reported in : AIR1974Delhi200; 45CompCas184(Delhi)
..... question is, whether this court has jurisdiction to entertain and try this suit.10. part vii of the companies act: 1956 (hereinafter referred to as the act) deals with the subject of 'winding, up'. section 425 of the act provides for the three following modes of winding up of a company(1) by the court; or (2) voluntary; or (3) subject to the supervision of the court.11. ..... not been obtained and this is why the question of sphere solution, thereforee, was never put in issue.25. it appears from the structure and scheme of the companies act that the legislature has approximated the winding up subject to supervision of court to voluntary winding up. of course there are important differences between the two. sections 522 to 527 deal specifically with the cases of ..... has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the companies (amendment) act, 1960. (3) any suit or proceeding by or against the company which is pending in any court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the ..... , conceded that section 446(1) did not apply to the present case. he relies mainly on section 526(2) of the companies act. i may at this stage read section 526:526. (1) where an order is made for a winding up subject to supervision, the liquidator may, subject to any restrictions imposed by the court, exercise all his powers, without the sanction .....Tag this Judgment!
Court : Delhi
Reported in : 59CompCas925(Delhi); 25(1984)DLT92
..... order of the learned single judge by which be directed the deletion of .the name of respondents 2-to 5 in a petition for winding up filed under section 433 of the companies act against respondent no. i a private limited company. respondents are one family; namely respondent no. 3 is the father of, respondent no. 2. respondent no. 4 is the wife of respondent ..... single judge has directed the deletion of names of respondents 2 to 5 is 'because 'he has held that in the winding up petition under section 433 of the act the only order that can be passed is either to wind up the company or not and that no other order in terms of relief against the directors or anybody else can be passed. hence apart ..... to adjudicate upon and settle, all the questions in dispute involved in the suit. to be added. (11) section 483 of the companies act provides for appeals from any order made or decisions given in the matter of winding up of a company by the court which shall lie to the same court to which in the same manner in which and subject to the ..... . khanna that the on i' persons entitled to be heard in a petition ror winding up are the petitioners or the company is not even supported by the express provision m the statute. thus section 577 of the act clearly provides that in all matters relating to the winding up of a company the .court may have regard to the wishes of the creditors or contributories of .....Tag this Judgment!
Court : Delhi
Reported in : AIR1995Delhi234; 80CompCas612(Delhi); 54(1994)DLT157; 1994(29)DRJ304; (1994)107PLR21
..... . 4,00,000.00 and filed a criminal complaint that the petitioner has, as a counter-blast, chosen to serve a statutory notice for winding-up on the respondent-company.(10) counsel for the petitioner has made reference to smt. madan debi kundalia v. alpine dairy ltd., (1983) 54 compcas 41, where ..... .(1) this petition has been brought under section 433 of the indian companies act seeking winding up order against the respondent-company.(2) the case setup in the petition, in brief, is that the petitioner has been receiving supplies of goods from the despondent-company in account and on march 31,1992, there was accredit balance of ..... raised a claim against the said creditor-petitioner and the court came to the conclusion that genuine and bonafide dispute stands raised by the company and thus, recourse to winding-up order cannot be had.(14) in view of the above discussion, i come to the conclusion, that in the present case, ..... a bonafide and genuine dispute has been raised by the respondent-company and thus, the petitioner is not entitled to the winding-up order on the ground of inability of the respondent to pay any debt to the petitioner. petition is dismissed with costs ..... paid as advance. on facts the andhra pradesh high court came to the conclusion that the defense raised by the company was not bonafide and thus, it was held that the winding-up order could be made in such a case. again, this case is not applicable to the facts of the present .....Tag this Judgment!
Court : Delhi
Reported in : (2007)3CompLJ127(Del); 79SCL353(Delhi)
..... , effectively and suitable by the civil court in a civil suit and not by the company court under the companies act in winding up petition. it was held that merely because the traders happen to be a company in itself is not a ground to file and entertain a company petition for its winding up. in elmeh india (supra) relied on by the respondent it was held that the ..... . the supreme court has held that if the debt is bona fide disputed and the defense is a substantial one, the court will not wind up the company. the principles on which the court acts are:(i) that the defense of the company is in good faith and one of substance;(ii) the defense is likely to succeed in point of law; and(iii) the ..... bona fide disputed, there cannot be neglect to pay within the meaning of section 433(1)(a) of the companies act, 1956. if there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated.thirdly, a debt about the liability to pay which at the ..... petitioner's petition under section 433(e) read with section 434 and 439 of the companies act, 1956 for winding up of the respondent company and for appointment of official liquidator as the provisional liquidator in respect of the affairs and assets of the respondent company and for restraining the respondent company from disposing of transferring, selling, alienating or parting with its assets in any manner whatsoever .....Tag this Judgment!
Court : Gujarat
Reported in : 96CompCas841(Guj)
..... regularly and is engaged in the business having turnover of crores of rupees every year cannot be brought to a halt on the basis of petitions for winding up under section 433(1)(e) of the companies act, merely because of the momentary financial difficulty. relying on the principle enunciated in madhusudan gordhandas' case  42 comp case 125; air 1971 sc 2600, ..... must in each case exercise its discretion in deciding whether in the circumstances of the case, it would be in the interest of justice to wind up the company. this is also manifest from section 443 of the act which leaves it in the discretion of the court to make any one of order envisaged therein. section 443 also envisages relevant consideration in which ..... remedy for realisation of his debt, a creditor is not precluded from seeking remedy under the companies act as well by asking for the winding up of the company and realisation of all the assets of the company for the due discharge of all its liabilities. the object of the winding up petition being entirely different, the remedy provided under section 433 has been held to be ..... of 31 comp cas) : 'where a creditor has proved his right against the company to a winding up order ex debito justitiae, but other creditors of the company have expressed conflicting views as to the desirability of winding it up, the judge has conferred on his a discretion by section 346 of the companies act, 1948, which, leaving out immaterial words, provides : 'the court may have regard .....Tag this Judgment!