2016 (9) TMI 1081

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....two pages, states that the nominal capital of the company is Rs. 3.50 crores, divided into 35 lac shares of Rs. 10/- each having been constituted for carrying on the business of assemblers, importers, exporters, buyers, sellers, stockiest, distributors, suppliers, wholesale and retail dealers, repairers, storers, cleaners, warehousers, hirers, leasers and worker in motor cars, motor buses, mini buses, motor lorries, motor trucks, trolleys, motor cycles, tractors, vans, launches, boats, aeroplanes, hydro planes, helicopters and aircrafts and other conveyances of all kinds and description suitable for propulsion of land, sea or the air or in any combination thereof whether propelled or assisted means of petrol, diesel, oil, spirit, gas, vapou....

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....on to Section 529-A and 530 of the Act. It is also argued that collection of tax being sovereign function, this Court may not exercise its judicial discretion in favour of the petitioner company. 7. Learned Assistant Solicitor General appearing for the Registrar of Companies has referred to the decision of the Supreme Court rendered in Harinagar Sugar Mills Co. Ltd., Bombay v. M.W. Pradhan (now G.V. Dalvi), Court Receiver, High Court, Bombay AIR 1966 SC 1707 and the judgment rendered by the Andhra Pradesh High Court in Krishna Kilaru and Another v. Maytas Properties Limited Rep. By its Managing Director, Hyderabad Comp. Pet. No.70 of 2010 & other connected matters (decided on 21-8-2012) = MANU/AP/0745/2012, to argue that neglect to pay the....

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....poration (1986) 59 Com Cases 183 (Guj) (DB), Rishi Enterprises, In re. (1992) 73 Com Cases 271 (Guj) and in Navjivan Trading Finance P. Ltd., In re. (1978) 48 Com Cases 402 (Guj), it has been held that a company will not be wound up merely because it is unable to pay its debts so long as it can be revived or resurrected by a scheme or arrangement or when it has still prospects of coming back to life. Although a petition can be filed by the company itself for winding up on any of the grounds mentioned under Section 433 of the Act, the motive behind the filing of the petition is also irrelevant as held in Bombay Metropolitan Transport Corporation Ltd. v. Employees of Bombay Metropolitan Transport Corporation Ltd. (CIDCO) and Others (1991) 71 ....

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.... the Supreme Court held that the power of winding up, conferred by Section 433 of the Act, is drastic. A winding up petition, praying for the economic death of a running and live commercial organisation, is an extreme remedy to be resorted sparingly. 14. Similarly, in M.S.D.C. Radharamanan v. M.S.D. Chandrasekara Raja and Another (2008) 6 SCC 750, it has been held that winding up of a company is not the interest of the applicant but the interest of the stakeholders of the company as a whole and the basic principle is to stave off the winding up of a company as far as possible and an order of winding up is to be resorted to only as a last course. All efforts are to be made for saving the company from being wound up. (Also see: Ranjana Kumar ....