TaxTMI 
TaxTMI 
1978 (7) TMI 219
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....aranteed by the company and to carry on, inter alia, all kinds of agency business and to take part in management, supervision and control of the business of any other company association, firm and persons and to act as managing agents, agents, secretaries, directors or sole director, etc., and to carry on business as bankers, confectioners, butchers, milk sellers, butter sellers, etc. It appears that the company is a habitual defaulter in filing its statutory documents and returns under the Companies Act with the Registrar of Companies and did not hold annual general meetings. The company and directors were prosecuted, convicted and fined year after year for the years ending 31st December, 1963, 31st December, 1964, 31st December, 1965, 31st December, 1966, and 30th June, 1967. It also appears that the directors of the company were prosecuted under section 614A(2) of the Companies Act for non-filing of the balance-sheet for the period up to 31st December, 1966, and annual return up to 30th June, 1967, and were convicted. It further appears that the company and its directors were also prosecuted for non-filing of the balance-sheets and profit and loss accounts for the years ending 3....
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....y that the company has not suspended its business and in fact it has carried on its business and earned substantial amounts by way of profits and the company is a solvent company. It is further alleged that the company is a subsidiary company of Messrs. James Wright Ltd. which also has its registered office at the same place at No. 22, Chittaranjan Avenue, Calcutta. It is further alleged that the company's books, papers and documents were seized by the Enforcement Department during 1962-63 and, therefore, the company was not in possession of those books for those years, as a consequence of which the company could not file its statutory returns and documents due to factors beyond its control. It is further alleged that the company has prepared its balance-sheets from 1970 onwards and the same have been duly audited by Messrs. George Read & Co., a firm of chartered accountant of Chowranghee Square, Calcutta, and the statements of accounts and reports have been prepared by the said auditors for the years 1970-71, 1971-72, 1972-73 and 1973-74, which have been given to the company for consideration by its shareholders. It is further alleged that the company through the sincere efforts o....
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...., inter alia, denying that the company tendered for filing the balance-sheets and annual returns for the years 1970 to 1974, as alleged. It was further submitted in the said affidavit that the present application is not an application by a creditor or a contributory for compulsory winding-up, but has been initiated by the Registrar of Companies pursuant to a sanction accorded by the Company Law Board and the same has been done in public interest. It was further pointed out in the said supplementary affidavit of the petitioner that the said Jhajharia Trading Co. P. Ltd. and James Wright Ltd. are companies controlled by the said Jhajharia and, therefore, they would naturally come forward to oppose the winding-up petition. It was specifically made clear in the said supplementary affidavit that the application has been made on two specific grounds, i.e., suspension of business for one year and it is just and equitable and, therefore, the creditors' view on the proposed winding-up petition is not material. Mr. A.C. Law, appearing for the petitioner, submitted that from the records of the Registrar, that is, the balance-sheets and other documents filed by the company, it appears that th....
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....les Corporation Ltd. [1972] 42 Comp. Cas. 139 (Bom.) and, lastly, the Supreme Court decision in Seth Mohan Lal v. Grain Chambers Ltd. [1968] 38 Comp. Cas. 543; AIR 1968 SC 772. Mr. Law submitted that in the present case although there is some delay in filing the winding-up petition after obtaining the sanction under sub-sec. (5) of section 439 of the Companies Act, 1956, for the public interest it is just and equitable that the company should be wound up and particularly having regard to the fact that all sorts of statements have been made in the affidavit filed on behalf of the petitioner regarding the carrying on of the business although no balance-sheet, profit and loss account, or returns have been filed by the company since 1963. Therefore, at this stage, it cannot be said that the presentation of the winding-up petition could be an abuse of the process of the court, and, therefore, it must be admitted. Mr. S.B. Mukherjee appearing for the company submitted, firstly, that there is no ground whatsoever as to the factual basis of obtaining sanction. Secondly, the present application is barred by limitation under article 137 of the Limitation Act, 1963, as the present applicati....
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....refuse to make an order of the winding up. Relying on the said decision, Mr. Mukherjee submitted that the present application is not maintainable as it is mainly on the ground which does not exist on the date of presenting the winding-up petition and on stale grounds, and secondly, the petitioning-creditor has ample and adequate alternative remedy to proceed against the company and its directors for non-compliance with the statutory provisions and the winding-up petition is not the proper remedy in the facts and circumstances of this case. He relied on the provisions of section 233(2) of the Companies Act which gave ample power to the petitioner to proceed under various other sections of the Companies Act against the company if there is any ground for the same. Mr. Mukherjee rightly submitted that in any event the present application is barred by limitation, as has been specifically held by the appeal court decision in Kumarapuram Gopal Krishnan Ananlhakrishnan v. Burdwan-Cutwa Railway Co. [1978] 48 Comp. Cas. 611 , 633; 82 CWN 774, 776; [1978] TLR 1937 (Cal.). Therefore, Mr. Mukherjee submitted that the present application should be dismissed. Mr. Mukherjee also drew my attention....
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....cion as to the nature of its business and the mode in which it is carried on. Further it appears that the company is consistently violating the provisions of the Companies Act by not filing its annual return, profit and loss account and the balance-sheets and the Registrar as a routine matter prosecuted the company and its directors year after year and obtained convictions. In spite of such convictions it appears that the company has not regularised the matter and has not complied with the provisions of the Companies Act yet. Further it also appears to me that the Registrar, on the one hand, on the basis of a sanction obtained under sub-section (5) of section 433 of the Companies Act on the ground that the company has suspended its business for more than one year and it is just and equitable to wind up the company, and on the other hand went on mechanically prosecuting the company and its directors for non-filing of the balance-sheets and profit and loss accounts year after year under the provisions of the Companies Act. I am finding it difficult to understand how such an inconsistent stand can be taken by the Registrar as, in one breath, he is alleging that the company has suspend....