Majestic Infracon Private Limited Vs. Etisalat Mauritius Limited, Republic of Mauritius and Others - Court Judgment

Excerpt:
civil procedure code or rule ix of the companies (court) rules, 1959- order 39, rule 1 - companies act, 1956 - section 397 section 398, section 443, section 433(f) - lack of uberrima fides between shareholders and company - valid acquisition of 2g licenses – cancellation of licenses – winding up petition challenged - respondent no.1/petitioner submitted that it is just and equitable to wind up appellant/respondent no.2/ company, on the ground that substratum of company has almost completely been eroded, that there is a deadlock in the management of company and board of directors of the company - there is a complete lack of uberrima fides between main shareholders of the company/petitioner and appellant, which is a glorified partnership - respondent no.1invested.....s.j. vazifdar, j. 1. admit. with the consent of the parties, the appeal is heard finally. 2. this is an appeal against the order and judgment of the learned company judge admitting a petition filed by respondent no.1 for having the second respondent company etisalat d.b. telecom limited (hereinafter referred to as "the company") wound up under section 433 (f) of the companies act, 1956 on the ground that it is just and equitable to do so. 3. it is convenient to refer to the parties as they are arrayed in the petition. in the petition, respondent no.1 to this appeal was the petitioner. the appellant was respondent no.2 to the petition. respondent no.2 to the appeal etisalat d.b. telecom limited i.e. the company sought to be wound up was respondent no.1 to the petition (hereinafter referred.....

Judgment:

S.J. Vazifdar, J.

1. Admit. With the consent of the parties, the appeal is heard finally.

2. This is an appeal against the order and judgment of the learned company Judge admitting a petition filed by respondent No.1 for having the second respondent company Etisalat D.B. Telecom Limited (hereinafter referred to as "the company") wound up under section 433 (f) of the Companies Act, 1956 on the ground that it is just and equitable to do so.

3. It is convenient to refer to the parties as they are arrayed in the petition. In the petition, Respondent No.1 to this appeal was the petitioner. The appellant was respondent No.2 to the petition. Respondent No.2 to the appeal Etisalat D.B. Telecom Limited i.e. the company sought to be wound up was Respondent No.1 to the petition (hereinafter referred to as "the company"). Respondent Nos.3 and 4 - Delphi Investment Limited and Genex Exim Ventures Private Limited were respondent Nos.3 and 4 to the petition.

4. The petitioner contended that it is just and equitable to wind up the company, inter-alia, on the ground that the substratum of the company has almost completely been eroded, that there is a deadlock in the management of the company and on the Board of Directors of the company and that there is a complete lack of uberrimafides between the main shareholders of the company viz., the petitioner and the appellant, which is a glorified partnership.

We have found each of these submissions to be well founded. The main features are that the petitioner invested a sum of about Rs.3,500/- crores in the company on the basis that the company had validly acquired thirteen 2G licences which constituted the main assets of the company. These licences were cancelled by a judgment of the Supreme Court. The petitioner admittedly invested in the company only after the 2G licences were issued and had nothing to do with the issuance of the licences to the company. The debts of the company are, as on date, in excess of Rs.4500/- crores. There is no possibility whatsoever of reviving the company. Further, there is a complete deadlock in the management of the company. The petitioner and the appellant are the major shareholders who hold about 45% each of the shareholding of the company. The Articles of Association of the company and the agreements entered into between the parties make it impossible for the company to function unless the major shareholders cooperate with each other. There is no possibility of their doing so.

The appellant firstly denied the aforesaid contentions although they were unable to deny the main facts viz. the cancellation of the 2G licences, the extent of the indebtedness of the company and the existence of a deadlock. In the alternative, it was contended that even assuming that the petitioner's case is held to be well founded, the petition ought to be dismissed in view of the conduct of the petitioner, both before and after the petition was filed. We have found no substance in the alternate submissions either.

5. After setting out the facts upto the date of the impugned order, we will deal with the petitioner's case for winding up the company and the appellant's defence thereto. We will thereafter deal with the appellant's contention that the petition ought not to be entertained in view of the petitioner's conduct before as well as after the petition was filed.

6(A) Mr. Kamdar, the learned senior counsel appearing on behalf of the appellant, submitted that a petition for the winding up of a company, including on the ground that it is just and equitable to do so, must be considered in greater depth even at the stage of admission as compared to other petitions or proceedings at the admission stage in view of the drastic consequences of even admitting a winding up petition. We agree. The appeal was, accordingly, heard at considerable length and in depth.

(B) Mr. Madon, the learned senior counsel appearing on behalf of the petitioner submitted that the Appellate Court ought not to easily interfere with the discretion exercised by the company Judge while admitting the petition for winding up, including on the just and equitable ground. As we have come to the conclusion that the learned Judge rightly exercised his jurisdiction while admitting the petition. It is not necessary to express any opinion on the question as to the manner of exercise of the appellate jurisdiction against such orders.

FACTS :

7(A) The petitioner, a company incorporated in Mauritius, is a 100% subsidiary of Emirates Telecommunications Corporation (Etisalat) incorporated in the United Arab Emirates. The Central Government of the United Arab Emirates owns 60% of the shares of Etisalat and the balance 40% is held by UAE nationals. Etisalat carries on business as an international telecommunications operator in about 18 countries and services over 140 million subscribers across its network.

(B) The company was incorporated on 18th July, 2006, in the name of Swan Capital Private Limited which was changed initially to Swan Telecom Private Limited and thereafter to its present name.

(C) Respondent No.2 i.e. the appellant, incorporated under the Companies Act, 1956, was formally known as Tiger Trustees Private Limited and its entire share capital is owned and controlled directly or indirectly by one Shahid Balwa and one Vinod Goenka.

(D) Respondent No.3 Delphi Investment Limited (hereinafter referred to as "Delphi") is a company incorporated in Mauritius. Respondent No.4 Genex Exim Ventures Private Limited (hereinafter referred to as "Genex") is incorporated under the Companies Act, 1956.

8. After its incorporation on 13th July, 2006, on 1st October, 2007, the appellant and respondent No.3 held 90.10% and 9.90% of the equity shares in the company.

9. On 10th January, 2008, the Department of Telecommunications, Government of India, issued to the company Unified Access Services Licences (hereinafter referred to as "the 2G licences"). The company availed of loans from banks to pay the entry fees.

10(A) On 23rd September, 2008, a Shareholder Agreement and Share Subscription Agreement were entered into between the company, respondent No.2 / appellant, the petitioner, respondent No.4 / Genex, Balwa and Goenka.

(B) On 17th December, 2008, the petitioner subscribed to 11,29,94,228 shares of the company. Genex respondent No.4 subscribed to 13317245 shares of the company. Consequently, the appellant, the petitioner and respondent Nos.3 and 4 held 45.73%, 44.75%, 4.27% and 5.27% of the equity shares of the company.

(C) On 17th March, 2009, the petitioner acquired two additional shares of the company involving an investment of Rs.209.70 crores which was equivalent to the spectrum fee payable by the company for the Rajasthan and Haryana circles under the 2G licences. On 25th May, 2010, the petitioner acquired one more share of the company involving an investment of Rs.106.95 crores which was equivalent to the spectrum fee payable by the company for the Bihar and Madhya Pradesh circles in respect of the 2G licences.

11. The three tranches of investment by the petitioner on 17th December, 2008, 17th March, 2008 and 25th May, 2010, aggregated to Rs.3545.09 crores.

The petitioner contended that it entered into the agreements and subscribed to the shares on the representations of Balwa and Goenka that the 2G licences were acquired in accordance with law and on the warranties made by the appellant as to their expertise in the field of telecommunications.

12. In the meantime, on 17th December, 2008, a Management Services Agreement was entered into between the company and Etisalat. We will refer to the relevant provisions thereof while dealing with the submissions. Suffice it to note at this stage that the appellant's contention is that the petitioner was in charge of the management of the company and is, therefore, responsible for the failure of the company. The petitioner's case on the other hand is that despite the provisions of the Management Services Agreement, the appellants, its directors and officers were, in fact, in charge of the management of the company.

13. On 21st October, 2009, before the petitioner invested the last amount of Rs.106.95 crores to acquire one additional share, the CBI filed an FIR against unknown officers of the Department of Telecommunications (DoT) and unknown private persons and began an investigation into the process of allocation of 2G spectrum by the DoT. On 14th February, 2010 and 3rd January, 2011, public interest litigations were filed in the Supreme Court challenging the allocation of the 2G spectrum.

14. The above petition was filed on 12th March, 2011.

15. On 2nd November, 2011, the CBI filed a charge-sheet before the special CBI Judge against the then Minister of Telecommunication and others, including the company, Balwa and Goenka. On 25th April, 2011, a supplementary charge-sheet was filed by the CBI furnishing details of the alleged illegal gratification channeled by M/s. Dynamics Realty which is a part of the DB Group of companies for allocation of the preferential allotment of 2G licences. The appellant is also a part of this group. According to the petitioner, the CBI charge-sheet alleges that the company was a Reliance-Anil Dhirubhai Ambani Group (R-ADAG) entity. R-ADAG was ineligible to apply for the said licences and the company was used by them to mask the identity of the promoter while applying for the 2G licences. On a change in the telecom policy, permitting dual technology R-ADAG sold Swan to Balwa and Goenka. The CBI charge-sheet describes how Balwa and Goenka entered into criminal conspiracy with RADAG, the then telecom Minister and the telecom Secretary to cause the issuance of the licences to the company at a price far below the inherent value. On 8th July, 2011, the Directorate of Enforcement issued a show-cause notice to the company and its Directors alleging violation of the provisions of the Foreign Exchange Management Act, 1999.

16(A). On 8th July, 2011, the appellant filed a petition against the company, the petitioner and the petitioner's nominee Directors on the Board of Directors of the company under section 397 and 398 of the Companies Act before the Company Law Board. The appellant, inter-alia, alleged that the petitioner had failed to bring its expertise and management skills to manage the business of the company in terms of the licences; that the petitioner had failed to comply with the capital call made by the Board of Directors of the company; that the minutes of the meeting of the Board of Directors held on 23rd November, 2011, had been wrongly recorded and that the petitioner was responsible for the financial losses suffered by the company on account of its mismanagement and unnecessary expenditure.

(B) On 1st August, 2011, the appellant unconditionally withdrew the petition. Balwa, by a letter dated 2nd August, 2011, addressed to the Chairman of Etisalat stated that the decision to file the petition was taken by his lawyers without his consent and concurrence and that such a thing would never happen again. The learned Judge has recorded in the impugned judgment that though the letter was disputed on affidavit, it was not disputed during the hearing before him.

17(A) On 22nd October, 2011, an order was passed by the special CBI Judge framing criminal charges against Balwa, Goenka and the company.

(B) The Supreme Court, by a judgment dated 2nd February, 2012, quashed all the 2G licences allotted to aliathe company. We will refer to the findings relied upon by the learned counsel appearing on behalf of the petitioner later.

(C) On 18th February, 2012, the TRAI recommended that the entry fees paid by the licences of the 2G licences ought not to be refunded. On 28th February, 2012, the DoT filed an affidavit stating that no refund of the licence fees was possible.

18(A) On 8th February, 2012, the company informed the DoT and the Telecom Regulatory Authority of India (TRAI) that it was shutting down its telecom network with effect from 31st March, 2012.

(B) At a meeting of the Board of Directors held on 19th February, 2012, the management of the company was directed to submit a plan for network shut down. At a meeting held on 22nd February, 2012, the Board of Directors unanimously decided to shut down the telecom network of the company. According to the petitioner, the appellant's nominee Directors supported this decision. The appellant denies having agreed to the shut down and alleges that the minutes wrongly record what transpired at the meeting. By a letter dated 23rd February, 2012, Goenka and Balwa objected to the manner in which the minutes of the meeting held on 22nd February, 2012, were recorded.

(C) On 23rd February, 2012, Reliance Infratel Limited (RITL) and Reliance Communication Limited (RCL) (hereinafter together referred to as "Reliance") filed petitions before the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) against the company claiming from it an amount of about Rs.1679 crores. On 31st January, 2012, Reliance switched off the telecom network of the company and disabled access through their passive telecom infrastructure to the company.

19. On 23rd February, 2012, the petitioner filed a suit in this Court against the appellant, Balwa and Goenka, claiming damages for the loss of its investment on account of the allegedly fraudulent representation and misrepresentation on the basis whereof it invested the said amounts.

20. On 1st March, 2012, the appellant withdrew its nominee Directors from the Board of the company.

21. On 29th March, 2012, criminal complaints were filed by the Channel Partners of the company against the petitioner's nominee Directors and employees seconded to the company. None of the Directors or employees associated with the appellant were named in these complaints which, according to the petitioner, indicated that the complaints were orchestrated/instigated by the appellant. Look-out notices were issued pursuant to the said criminal complaints. On 3rd April, 2012, one Pratap Ghose seconded by the petitioner company was detained at the Mumbai International Airport.

22. On 3rd April, 2012, the Supreme Court rejected a petition for a review of the judgment dated 2nd February, 2012, quashing the 2G licences.

23. Citibank, a creditor of the company had filed an application before the Debts Recovery Tribunal, New Delhi. By an order dated 13th April, 2012, the DRT directed the company to disclose it movable and immovable assets and to maintain status quo in respect thereof. Standard Chartered Bank (SCB), another creditor of the company also filed an application before the DRT for recovery of its dues. On 16th April, 2012, the DRT passed an ex-parte order directing the attachment of all the assets of the company and appointed a Receiver thereof.

24. On 19th May, 2012, Punjab National Bank wrongly appropriated an amount of Rs.254.16 crores out of the company's fixed deposits towards a loan granted by it to the appellant. On 12th October, 2012, the appellant's advocate issued a letter admitting that it owed Rs.254 crores to Punjab National Bank and that the appropriation of funds of the company was illegal.

25. On 3rd July, 2012, the learned company Judge passed an interim order appointing an advocate and solicitor of this Court as an Authorized Person in respect of the company. He was to discharge several functions in connection with the company. We will refer to this order in detail later.

The Authorized Person had submitted several reports before the company Judge. Several orders have been passed on these reports, including regarding the termination of the services of 212 out of the 286 employees of the company, making payments for premium of insurance policies, payments of the employees salaries etc.

The Authorized Person also obtained permission of the company Judge to file an application before the DRT to obtain a stay of the ex parte order dated 16th April, 2012, appointing a Receiver in respect of the movable and immovable properties of the company. On 9th January, 2013, the DRT declined to set aside its order but directed the order to remain in abeyance so long as the appointment of the Authorized Person by the order of the company Judge dated 3rd July, 2012, continued. We will refer to the orders passed by the company Judge on the appellant's application to bid at the re-auction at the appropriate stage.

26. On 6th August, 2012, the appellant issued a notice invoking arbitration under the share subscription agreement and the shareholders agreement. By its letter dated 14th August, 2012, the petitioner replied to the same.

27. On 10th January, 2013, the Additional Commissioner of Income-tax, Mumbai, passed an order under section 281-B of the Income Tax Act, 1961, attaching the telecom licence fees deposited by the company with the DoT. On 16th January, 2013, DoT wrote to the company stating that it would not refund the licence fees.

28. The total amount claimed by the creditors of the company as on 12th April, 2013, was about Rs.4200 crores. Standard Chartered Bank which has a claim of Rs.1465.95 crores and Citibank which has a claim of Rs.738 crores appeared before the learned single Judge as well as before us supporting the winding up of the company. RIL and RCL opposed the winding up of the company. They have an aggregate claim of Rs.1679 crores.

FACTORS IN SUPPORT OF THE PETITIONER'S CASE FOR WINDING UP THE COMPANY ON THE JUST AND EQUITABLE GROUND.

29. The petitioner has made out more than just a strong prima facie case that the substratum of the company is completely eroded and that there is almost no hope of reviving the company; that there is a complete loss of faith between the main shareholders of the company viz. the petitioner and the appellant and that there is a complete deadlock in the management and on the Board of Directors of the company. The order admitting the petition must be sustained on these three grounds which we have held require further consideration at the final hearing of the petition.

30(A)(i) We referred earlier to the public interest litigations and the judgment of the Supreme Court in respect of the allocation of the 2G spectrum. The Supreme Court, by its judgment dated 2^nd February, 2012 in Writ Petition (Civil) No.423 of 2010 Centre for Public Interest Litigation and Ors. v. Union of India and Ors., quashed all the 2G licences, including those allotted to the company.

Mr. Madon relied upon several observations in the judgment of the Supreme Court. It is not necessary to refer to all of them. It is sufficient for the purpose of these proceedings to note that the Supreme Court held that the entire approach adopted in the allocation of licences was lopsided and contrary to the decision taken by the council of ministers and that this approach became a handle for the then minister of CandIT and the officers of the DoT to gift away important national assets at throw away prices by willfully ignoring the concerns raised from various quarters, including the Prime Minister, Ministry of Finance and also some of its own officers. The judgment notes that this becomes clear from the fact that soon after obtaining the licences some of the beneficiaries offloaded their shares to others in the name of transfer of equities or infusion of fresh capital by foreign companies and thereby made huge profits. The Supreme Court stated that it had no doubt that if the method of auction was the only rational, transparent method for distribution of national wealth and had that method been adopted the nation would have been enriched by many thousand crores. It was also noted that the arbitrary action in introducing the cut-off date for consideration of applications benefited some of the real estate companies who did not have any experience in dealing with telecom services and that everything was stage-managed to favour those who were able to know in advance the change in the implementation of the first-come-first-serve policy. Accordingly, the Supreme Court declared as illegal and quashed the licences granted to the private respondents before it which included the company. The operative part of the order and judgment records that the company was one of the private companies who would be benefited at the cost of the public exchequer by a wholly arbitrary and unconditional action and directed the company to pay costs of Rs.5 crores.

(ii) We must clarify here that it is not necessary for the purpose of these proceedings to express any opinion about the conduct of any particular individual. The same is the subject matter of investigation by the authorities. This is clear from paragraph 81(vii) of the judgment which reads as under :

œ81. .........

(vii) However, it is made clear that the observations made in this judgment shall not, in any manner, affect the pending investigation by the CBI, Directorate of Enforcement and others agencies or cause prejudice to those who are facing prosecution in the cases registered by the CBI or who may face prosecution on the basis of charge-sheet(s) which may be filed by the CBI in future and the Special Judge, CBI shall decide the matter uninfluenced by this judgment. We also make it clear that this judgment shall not prejudice any person in the action which may be taken by other investigating agencies under Income Tax Act, 1961, Prevention of Money Laundering Act, 2002 and other similar statutes."

31. A charge-sheet dated 22nd October, 2011, has also been filed, inter-alia, against the said Balwa and Goenka in the Court of Special Judge, CBI in what is now referred to as the 2-G Spectrum case. The same alleges various illegalities and criminal acts on their part. Criminal conspiracy on their part along with others has also been alleged. The result of the case is not material. The charge-sheet along-with various others factors, including the judgment of the Supreme Court, prima facie, at least, is sufficient ground for the company court coming to the conclusion that the petition for winding up the company on the just and equitable ground warrants admission.

32. The petition for winding up ought to be admitted even assuming that none of the persons connected with the company are found guilty. We do not for a moment suggest that the moment there is a complaint about the conduct of a company or its promoters, directors and officers, a court must wind up the company on the just and equitable ground. That would depend on the facts of each case. When matters have reached such a stage as in this case, a substantial partner in the company is entitled to approach the court to have the company wound up on the just and equitable ground. Considering all that has transpired it cannot be said that the petitioner's loss of confidence in it's partner is unjustified even if the petitioner has not independently verified whether the case against the appellant and/or its promoters is correct or not. It is not necessary in such circumstances for the company court to await the result of the trial in criminal proceedings or proceedings adopted by the authorities under various enactments before winding up a company. The consequences of the proceedings even at this stage have resulted in the erosion of the substratum of the company. The substratum of the company will not be revived even if the criminal proceedings result in an aquittal of all the accused.

In the case before us, the facts leading to the cancellation of the licence by the Supreme Court are relevant while deciding whether or not the company ought to be wound up on the just and equitable ground. In the present case, this fact, added to the other facts that we have referred to already, makes the case, atleast for the admission of the petition, that much stronger.

33. There is another factor which must be added to the above. Sixty percent of the equity shares of the petitioner is controlled by the Government of U.A.E. The Supreme Court of India having made the said observations and the regulatory authorities having taken action against the persons connected with the company would justify a Government of another country being reluctant to continue with a venture which, prima facie, at least, is tainted in respect of a predominant part of its commercial activities. The justification is greater as the petitioner joined the venture on the basis of this very activity to be undertaken on the basis of the 2G licences cancelled by the Supreme Court.

34. The learned Judge rightly came to the conclusion that with the cancellation of the thirteen 2G licences, the company was left without a commercial enterprise. The 2G licences were the most valuable asset of the company. The commercial existence of the company depended on these licences. They were undoubtedly the basis on which the petitioner was pursuaded to invest a sum of over Rs.3500 crores in the company.

35. The appellant's denial of the company having lost its substratum is based essentially on the fact that the company still has three telephone licences viz. International Long Distance, National Long Distance and Internet Service Provider licences. It is contended that the company can carry on business utilizing these three licences.

36. The appellant was unable to indicate how on the basis of the three subsisting licences the company would be able to carry on business profitably even in the distant future. Although these are business decisions which the company is entitled to assess, it is incumbent especially in such cases for the party to establish even prima facie that the company is at least likely in future to be a commercially and financially viable undertaking. Our attention has not been brought to any material which even remotely indicates the same. Nothing except a purported scheme - and we use the term "purported" advisedly - which we will refer to shortly. The petitioner's investment in the company was almost entirely if not only in view of the 2G licences held by the company. It was not on the basis of the three subsisting licences. As noted by the learned Judge there has never been a proposal or plan to operate a business using these three subsisting licences. Nor is there a technical or a business plan indicating the resources required and the manner of conducting the business based on the three subsisting licences.

37. An indication of the relative values of the 2G licences and the three subsisting licences is the cost of acquisition of the licences. The thirteen 2G licences were acquired at a cost of Rs.1600 crores whereas the three subsisting licences were acquired for a mere Rs.5.20 crores. The value of the three subsisting licences is merely 0.325% of the value of the 2G licences. The petitioner's submission that even if the company were to commence business utilising the three subsisting licences, the costs involved in setting up the same would only generate further liabilities and the earnings in any event, would be insufficient to service the existing debts is, therefore, well founded. In the facts and circumstances of this case, the learned Judge justifiably held that it would not be in the interest of the company to even attempt to commence such business.

38. Mr. Kamdar submitted that although the 2G licences of other companies had also been cancelled, they continue to function. The company ought therefore to be given an opportunity to function with the three subsisting licences.

39. Mr. Madon stated that only two companies had been held to be guilty of a fraud and that in the other companies which continue to function the Indian shareholders had exited. Even ignoring Mr. Madon's contentions it would make no difference. The factors relevant to the financial and commercial viability of the companies are not the same. Each company has its own strengths and weaknesses. The appellant has not even attempted to indicate any similarities between the companies that continue to function despite the cancellation of the 2G licences allotted to them and the company in this case. The mere cancellation of the 2G licences is not the only factor that determines the commercial viability of an enterprise. Our attention was not invited to any material that would justify a comparison between those companies and the company before us.

40. The indebtedness of the company is, as on date, over Rs. 4,500 crores. Mr. Kamdar stated that the Reliance group of companies is opposing the winding up. However, the Reliance companies have also sought repayment of amounts in excess of Rs.1700 crores. They have not given up their claim. In fact, the attempt on the part of Balwa and Goenka was to ensure repayment to the Reliance companies in priority to the other creditors. Clause 4(b)(ii) of the minutes of the meeting of the Board of Directors of the company held on 19th December, 2011, records that Balwa pointed out that the company must confirm to Reliance an undisputed amount owed to it and "make immediate payment of it". That probably is why Reliance is opposing the winding up petition. The two major creditors - Standard Chartered Bank and Citibank, to whom an amount of over Rs.2,000 crores is due, have not only not waived their claims, but have adopted proceedings to recover the same and have even sought for and obtained orders from the DRT appointing a Receiver in respect of the assets of the company. The order for Receiver has merely been suspended and that too only in view of the fact that the Authorized Person has been appointed by the company Judge. If, therefore, the appointment of the Authorized Person is revoked, the Receiver would take possession of the assets of the company in any event. It is difficult to see how in that event the company would at all be able to function. Moreover, even assuming that the company continues to function under the Receiver, there is nothing to indicate that the revenues would, even in the distant future, be sufficient to pay the dues of the company.

41. The appellant had sought permission from the company Judge to bid at the fresh auction after the judgment of the Supreme Court. The learned company Judge rejected the application. The order was upheld in appeal. There is, therefore, no question of the company conducting any business on the basis of the 2G licences as the same stand cancelled. We will deal with Mr. Kamdar's submissions that the company ought not to be wound up on the application of the petitioner as it had opposed the application to bid at the fresh auction later. Suffice it to state at this stage that we have rejected the contention.

42. The appellant did not deny the averment in the petition that a minimum of USD 18 million was required to continue the operations by the company. It merely stated that the petitioner had made contrary submissions as in paragraph 17B of the petition the petitioner alleged that the company incurs an expense of USD 38.9 million per month. However, it is also stated that this expenditure had reduced considerably to USD 6.5 million in the month of February, 2012. This would stand further reduced considerably on account of the fact that the services of several employees have been terminated even thereafter. What is important to note is that the appellant does not even indicate the amount that would be required to continue the operations on the basis of the three subsisting licences.

43. This brings us to the judgments relied upon by Mr. Kamdar in support of the submission that the substratum of the company cannot be deemed to be gone.

44(A) Mr. Kamdar relied on the following observations in InRe: Cine Industries and Recording Company Limited (1941) 44 BLR 387 :

"Therefore on the authorities the position seems to be that the substratum of the company is deemed to be gone when (a) the subject-matter of the company is gone, or (b) the object for which it was incorporated has substantially failed, or (c) it is impossible to carry on the business of the company except at a loss which has been construed by the Privy Council to mean that there is no reasonable hope that the object of trading at a profit can be attained, or (d) the existing and probable assets are insufficient to meet the existing liabilities. None of these four tests can apply to the facts of the present case."

(B) The judgment is of no assistance to the appellant.

(i) As we observed earlier, the subject matter of the company is gone. Condition (a) that the subject matter of the company is gone does not imply that it must have gone entirely. It is sufficient if the court comes to the conclusion that it has substantially or almost entirely gone. It can hardly be suggested that what was meant was that even if a minuscule part of the subject matter of the company remains it cannot be said that the substratum of the company has gone. In the case before us, the thirteen 2G licences have been cancelled leaving the company with the three subsisting licence. The monetary value of the three subsisting licences is only 0.325% of the value of thirteen 2G licences. The monetary values are at least an indication of the extent of the erosion of the substratum of the company.

(ii) Condition (b) refers to the object for which the company was incorporated. This condition does not apply only to the initial object for which the company was incorporated. The applicability of this principle would indeed depend upon the facts of each case. We would extend this principle to cases where an investor joins a glorified partnership in view of the main business carried on at the time of his joining. It would be necessary to establish that the main or predominant business at the time and on the basis of which the investor joined the company has substantially failed. Applying this principle to the present case it can hardly be doubted that the petitioner invested an amount of about Rs.3500 crores almost entirely if not entirely on the basis and in view of the thirteen 2G licences. The licences having been cancelled, the object for which the company was incorporated and in any event the object on the basis of which the petitioner invested over Rs.3500 crores has not merely substantially, but entirely failed.

(iii) In view of what we have held regarding the financial position of the company and the lack of any prospect of revival conditions (c) and (d) are also met. That the existing and probable assets are insufficient to meet the existing liabilities is, if not admitted, established beyond doubt. The only fact relied upon by the appellant to indicate the future business prospects of the company is the purported scheme which, as we have held later, inspires no confidence.

(C) The judgment, far from supporting the appellant, in fact, supports the petitioner.

45. Mr. Kamdar's reliance upon the judgment of the Supreme Court in MadhusudanGordhandas v. Madhu Woolen Industries Pvt. Ltd., (1971) 3 SCC 532, paragraph 29 is also unfounded. The Supreme Court held that an application that the substratum of the company is gone is to be alleged and proved as a fact and that the mere fact that the company has suffered trading losses will not destroy its substratum unless there is no reasonable prospect of it ever making any profit even in the future. In the case before the Supreme Court, the company established that out of the proceeds of sale of the machinery, there would be sufficient money for carrying on the export business which was within its objects. One of the Directors of the company was a partner in a firm which was a creditor of the company. The company was not required to meet the claim of the firm and on the contrary the group of the Directors was to bring money into the company. It was found as a matter of fact, therefore, that the substratum of the company had not gone.

On the other hand, in the case before us, it has been established that the substratum of the company has gone. There is no prospect of money being brought in by anyone to make it a commercially viable enterprise.

46. Mr. Madon relied upon the judgment of a Division Bench of the Gujarat High Court in InRe: Kermeen Foods Pvt. Ltd. 1985 58, Company Cases, 156. Mr. Madon relied upon the judgment as, according to him, the facts were similar to the facts in the present case. That, however, does not carry the matter any further on the question of law.

47. Mr. Kamdar then submitted that the financial position of the company is not relevant in a winding up petition based on the just and equitable ground. The financial position, according to him, is relevant only if the petition is filed under section 433(e) i.e. where the company is unable to pay its dues.

48. Mr. Madon relied upon the judgment of a learned single Judge of the Calcutta High Court in InRe: Darjeeling Bank Limited, AIR 1948 Cal. 335 and 1977 Company Cases, 15, in support of his submission that the absence of a statutory notice under section 434(1) (a) would not make a difference as that would only disentitle a petitioner to avail of the deeming provision under section 434(1)(a) that the company is unable to pay its debts. The judgment is irrelevant as the point before us is quite different. What Mr. Kamdar submitted was that as this is not a petition under section 433(e) i.e. an application for winding up on the ground that the company is unable to pay its debts, the financial position of the company is irrelevant.

49. The question, therefore, is whether the financial position of a company is an irrelevant consideration in a petition for winding up a company on the just and equitable ground under section 433(f). The submission in a matter such as this is not well founded. The petitioner does not seek to have the company wound up on the ground that it is unable to pay the debts of the petitioner. One of the grounds in support of the petition for winding up the company on the just and equitable ground is that the substratum of the company has gone. This is not, therefore, a matter where only a particular debt is in question. The matter involves the very substratum of the company. The substratum of a company having gone is a relevant ground while considering a petition for winging up a company on the just and equitable ground. The just and equitable ground may be invoked in a case where the substratum has gone, where there is a deadlock and there is a justifiable loss of confidence between the major shareholders.

50. It is both just and equitable that if the substratum of the company has gone, it ought to be wound up for the failure to do so would only result in further losses and further debts, which is to the detriment of all the parties concerned - the shareholders, the creditors and the workers. Continuing such a company cannot possible ensure to the benefit of any of these parties. Nor can it be in public interest to continue such a company in the facts and circumstances of this case. Where the entire business that a company was formed to do or which it may be entitled to do cannot possibly be done even in future, the court would readily invoke the just and equitable ground to wind it up for no purpose would be served by letting it continue.

51. Where a company is, for any reason, unable to carry on the business undertaken by it, it cannot be said that its substratum has not gone merely because it can or is entitled to undertake any other business even if such new or different business cannot be carried on in a commercially viable manner. In other words, where a company is unable to carry on the main business and is found to be unable to or incapable of undertaking any other business even in future in a commercially viable manner, it must be held that its substratum has gone.

In this case, the company would be unable to do any business even unrelated to the 2G licences for it does not have the financial capacity to do so. Any attempt to do any other business, including related to the three subsisting licences would only result in disastrous consequences plunging the company to a situation far worse than it is today.

52. There may be certain exceptional cases arising on account of extraordinary circumstances which may pursuade a court not to wind up a company although its substratum has gone if it is in the public interest that the company continues. For instance, if a company is the only enterprise manufacturing critical defence equipment or components for defence equipment and there is an urgent need for such equipment a court may be pursuaded to let the company continue to function in public interest. The case before us does not fall under this category. Nothing to this effect was even suggested on behalf of the appellant.

53. This brings us to the purported scheme upon which the appellant relies to contend that the company is capable of carrying on business and ought to be afforded an opportunity to do so.

54. It is necessary to note the circumstances in which the scheme was prepared and placed before the learned Judge. They are set out in paragraph 3 of the judgment. In paragraph 3.6 the learned Judge noted that during the hearing on 30th October, 2012, counsel on behalf of the appellant submitted that the appellant was in a position to place a revival scheme before the Court even without receiving the funds due to the company which were held up with the Telecom authorities and/or banks. The learned Judge, even at that stage, afforded the appellant, albeit without prejudice to the contentions of the parties, an opportunity to place the revival scheme before the Court within one month i.e. by 30th November, 2012. The scheme was circulated on 5th December, 2012.

55. The learned Judge rightly held that the scheme did not take the appellant's case any further. It was impossible for him to have accepted it. The scheme inspires little, if any confidence. It is vague and without any material particulars. It is sufficient to note only a few aspects regarding the scheme to uphold the view of the learned Judge that it is incapable of reviving the company.

(i) Paragraph 4.1 of the scheme states that it is in the interest of the creditors and the company that the company "ought to be revived" indicating thereby that the company, as on date, is not a viable enterprise.

(ii) In paragraph 4.3 it is stated that the three subsisting licences can be commercially exploited to generate revenues for the company. This is a bald assertion without any particulars even as to the financial projections. Paragraph 4.3 also states that the appellant "firmly believes" that the company can be revived with the three licences and with future growth opportunities that may be available in the telecom sector. Again, there are no particulars whatsoever. There is not even a feasibility report.

(iii) Paragraph 4.4 states that the scheme is formulated on the assumption that the company does not receive the funds due to it by the Telecom authorities and/or the banks. Paragraph 5.1 admits that the debts at that time aggregated to Rs.3883 crores and stated that the cash in hand was approximately Rs.737.44 crores. Clause 6 deals with the source of funds for revival of the company. It states that the company can generate an amount of about Rs.2540.04 crores. This, however, comprises of a sum of Rs.1600 crores by way of "Equity Infusion by certain class of investors." There are no particulars even as to the identity of the investors. There is no affidavit or even a letter from any person confirming the same. Paragraph 6 further states that the appellant is presently in talks "with various potential investors" without specifying who the potential investors are.

(iv) In clause 7 it is stated that the company would settle the claims of all its creditors, but there is not even a suggestion as to how the claims would be settled. It is pertinent to note that the scheme admits that an amount of Rs.1600.27 crores is due to the Standard Chartered Bank, that a sum of Rs.745.03 crores is due to the Citibank and an amount of Rs.1537.97 crores is due to the other creditors, including Reliance.

(v) There is a summary of cash flow over the business of ten years annexed to the scheme. It is also important to note clause 8.2 of the scheme, which reads as under :-

"8. SETTLEMENT OF CREDITORS

...........

8.2 The Scheme Debt shall be payable subject to the respective Creditor(s) taking appropriate step(s), moving appropriate application(s)/joint application(s)/petition(s) etc. and doing and performing all such acts, deeds and things and undertaking and providing all the necessary assistance to the Company, that are necessary or incidental, for the withdrawal or quashing of any and all Dispute(s) as may have been filed by them."

Thus, the scheme is based on the creditors in effect withdrawing and quashing all the disputes filed by them. Indeed, if all the creditors did agree to withdraw and abandon their claims, the company may be able to do some business. Clause 8.2 is sufficient to indicate how utterly unworkable the scheme is. Even Reliance, which the appellant alleges is opposing the winding up of the company, has not agreed to withdraw its claims of about Rs.1600 crores.

(vi) The scheme is also conditional upon the withdrawal of the winding up petition.

56. The doubt, if any, about the sheer inefficacy of the scheme is put to rest by a fundamental and an even more important fact. The scheme was only tendered in Court. It was not annexed to any affidavit. Nor is any affidavit filed by or on behalf of the appellant deposing to the scheme. This was despite the fact that the petitioner rightly insisted upon the scheme being put on affidavit. The scheme, therefore, cannot even be looked at.

57. The learned Judge also rightly noted that the consent of the petitioner would be required for any such venture. This is clear from the terms of the shareholders agreement and the share-subscription agreement. The petitioner's refusal to agree to the same cannot be termed as unreasonable. The learned Judge recorded the petitioner's statement that it did not intend pursing the suggested enterprise as it posed additional risks and liabilities for the company which would only worsen its financial position as well as its ability to repay the debts due to creditors. Considering the facts and circumstances of the case, the petitioner's stand is understandable and justified.

58. As we noted earlier, the company was indebted to various creditors and is liable for various other dues aggregating to about Rs.4500 crores. The scheme does not even indicate how the company can turn the corner and become a viable enterprise.

59. It is not necessary in this case, therefore, to consider whether the court can compel the petitioner, who invested such a large amount in the company on the basis of the 2G licences to continue to deploy his funds on a different venture. It would have been necessary to consider this question had there been a possibility of the company undertaking another business venture in a commercially viable manner.

60. Moreover, the leaned Judge has clarified that a genuine comprehensive scheme which is in the interest of the company, its shareholders and creditors can always be placed before the Court for its consideration even after the admission of the company petition. No such attempt has been made to date.

61. In the circumstances, we are entirely in agreement with the learned Judge that the company has lost its substratum and that the appellant's contention that the company is capable of being revised is unrealistic.

62. The petitioner further contended that there is a complete loss of faith and trust between the appellant and the petitioner. This, in turn, has resulted in a deadlock in the management of the company and on the Board of Directors. As a result thereof also it is just and equitable that the company be wound up.

63. We referred to the judgment of the Supreme Court and the criminal proceedings. The same have resulted in the petitioner loosing faith in the appellant, its main partner. In view of these facts alone, it is not possible to hold that the petitioner's loss of faith is not understandable.

64. Mr. Kamdar's first contention that the petitioner had not pleaded that there was a deadlock or even the possibility of a deadlock is incorrect. The pleadings are sufficient to contend that there is a deadlock and in any event a very high probability of a deadlock in the management of the company. The allegations and counter-allegations establish that the two major shareholders viz. the petitioner and the appellant who hold about 45% each of the equity share capital of the company are not likely to agree to important policy decisions. We, in fact, need go no further than to note the purpose of this petition itself. The petitioner unequivocally refuses to continue any association or venture with the appellant and is against the company continuing to function. This is a clear indication by itself of a break-down in the management of the company. It is sufficient to quote paragraph 8 (d) of the petition, which reads as under:-

"8 ............

(a) ............

(d) The Petitioner was unaware, prior to its investment in the Company, of the matters raised in the Supreme Court proceedings. On the contrary, it made its investment on the basis of the representations made that the Licenses had been legally obtained and were validly held by the Company. The afore-stated facts and events have brought about a total breakdown in the relationship between the parties, loss of confidence and trust, created a situation of a total deadlock with no hope or possibility of any solution in the functioning, governance and improvement in funds and financial capability of the Company to function profitably and discharge its debts and liabilities in normal and ordinary course of business."

[emphasis supplied]

It is averred in paragraph 10 of the petition that the relationship between the parties has "irretrievably broken down and it is no longer possible for the parties to come together to implement the agreed business plan for the company especially in large number of matters requiring an affirmative vote." In paragraph 20 of the petition, the petitioner averred that the faith and trust with which the investments were made by it in the company on the representation of Balwa and Goenka is lost; that there is total loss of confidence and mutuality between the shareholders of the company and that "the company is in a situation of a total deadlock on the Board and on the functioning."

[emphasis supplied]/

65. The petitioner has, therefore, expressly pleaded that there is a complete lack of uberrimafides between the majority shareholders and that there is a deadlock in the management. The contention that the petitioner has not pleaded the same is rejected.

66. Mr. Kamdar then submitted that there is, in fact, no deadlock and that assuming that there is a likelihood of deadlock, the agreements between the parties provide a mechanism for resolving the same.

67. In view of the facts that have transpired, including those set out earlier, it is futile to presume or even imagine that the majority shareholders would cooperate with each other. There is nothing on record to suggest that the two minority shareholders who together hold about 10% shares are likely to co-operate with either the appellant or with the respondent. Even assuming that they agree to co-operate only with the appellant, it would make little difference for two reasons. Firstly, in view of the petitioner holding 45% of the equity shares, there is no possibility of special resolutions being passed. This itself would hamper the smooth functioning of the company. Secondly, and more important is that even assuming that the minority shareholders agree to support only the appellant, it would make no difference in view of the provisions of the agreements between the parties and the Articles of Association of the company. Clauses 8, 16, 20 and 21 of the Articles of Association of the company make it virtually impossible for the company to function in any meaningful way without the cooperation of the appellant and the petitioner.

(A) In this regard it is sufficient to mention only a few ingredients of clause 8, 16, 20 and 21 of the Articles of Association of the company.

Clause 8 provides that the petitioner would be entitled to nominate three directors and the appellant would be entitled to appoint two directors. Further, the two directors to be appointed by the appellant are to be approved in writing by the petitioner if he is a competitor director. The petitioner and the appellant are entitled to nominate directors depending upon the extent of their shareholding in the company. The directors appointed by the petitioner and the appellant are not liable to retire by rotation. The petitioner is entitled to nominate the Chairman of the Board of Directors and the appellant is entitled to nominate the Vice Chairman.

(B) Clause 16 provides for the quorum for any meeting of the Board of Directors. The quorum requires the presence of at least one of the appellant's directors and two of the petitioner's directors unless they waive this requirement. The quorum for meetings of any committee established by the Board of Directors has a similar requirement.

The petitioner, therefore, has a majority on the Board of Directors and is also entitled to nominate the Chairman. Meetings cannot be held in the absence of the petitioner's directors. Considering the relationship between the parties, there is little, if any likelihood of any effective resolution being passed.

(C) Under clause 20(a)(ii), so long as the petitioner's holding is at least 40% of the share capital of the company, no action or decision relating to any of the affirmative matters can be taken without the petitioner's prior written consent in respect thereof. The affirmative matters are enumerated in clause 20(b). The affirmative matters have a significant bearing on the running and the continued existence of the company as a viable commercial enterprise. The affirmative matters include any amendment to the Memorandum of Association and Articles of Association of the company; the approval of the annual financial and Operating Business Plan and any changes thereto to the extent materially inconsistent with the Initial Business Plan. The initial business plan contemplated the working of the 2G licences which now stand cancelled. The affirmative matters also include a significant change in the nature and scope of the business to the extent not contemplated by the initial business. The petitioner has made it clear that it does not intend according it's consent especially in this regard. The affirmative matters include borrowings and grant of guarantees outside the Annual Financial and Operating Business Plan to the extent not contemplated by the Initial Business Plan. The petitioner is hardly likely to give it's consent in this regard. Financial issues are obviously one of the most vital aspects for running the company. If there is no cooperation and there is not likely to be any in this regard, the continued existence of the company is impossible. Even the appointment or termination of any of the key employees or agreements to the terms of such appointment fall within the category of affirmative matters.

68. It is clear that the petitioner is not going to give it's consent to the affirmative matters especially those mentioned above. In the absence thereof, there is no likelihood of the company being able to function as a commercially viable and solvent entity. In the circumstances, the substratum of the company which today stands eroded is not likely to revive and the deadlock continues to exist with no prospect of a resolution. Considering the relationship between the parties, it is highly unlikely that either of them would furnish their consent written or otherwise in respect of the matters that require an affirmative vote.

69. Mr. Kamdar submitted that even assuming that there is a deadlock, clause 21 of the Articles of Association provides for an internal remedy. Clause 21 reads as under :-

"21. Deadlock

a) If a proposal is made in respect of an Affirmative Matter but such proposal is not approved in accordance with Article 20 (a) a Shareholder may give written notice to the other Shareholders that it regards a deadlock situation as having arisen (œDeadlock?).

b) A Deadlock shall be referred to the senior management of the Founding Shareholder and the Strategic Investor within ten (10) Business Days of a notice issued under Article 21. Such senior management shall endeavor to resolve the Deadlock within twenty (20) Business Days of the matter being referred to them (œDeadlock Discussion Period?)."

70. Clause 21 merely provides that the parties "shall endeavour to resolve the deadlock". The parties are not bound to resolve the deadlock. There is no self-operative mechanism that provides a solution to a deadlock.

71. Mr. Kamdar then submitted that a deadlock situation can arise only where the contesting parties hold exactly 50% each of the equity capital of the company.

72. Even absent provisions such as those contained in clauses 8, 16 and 20 of the Articles of Association, the submission is not well founded. Mr. Kamdar relied upon paragraph 33 of the judgment of the Supreme Court in Hind Overseas Pvt. Ltd. v. Raghunath Prasad Jhunjhunuwalla (1976) 3 SCC 259. Mr. Kamdar's submission, in fact, militates against the judgment of the Supreme Court. Paragraph 33 reads as under :

"33. When more than one family or several friends and relations together form a Company and there is no right as such agreed upon for active participation of members who are sought to be excluded from management, the principles of dissolution of partnership cannot be liberally invoked. Besides, it is only when shareholding is more or less equal and there is a case of complete deadlock in the Company on account of lack of probity in the management of the Company and there is no hope or possibility of smooth and efficient continuance of the Company as a commercial concern, there may arise a case for winding-up on the just and equitable ground. In a given case the principles of dissolution of partnership may apply squarely if the apparent structure of the Company is not the real structure and on piercing the veil it is found that in reality it is a partnership. On the allegations and submissions in the present case, we are not prepared to extend these principles to the present Company."

From paragraph 33, it is clear that the shareholding does not have to be equal in such a case. It is sufficient if it is "more or less equal". All the tests contained in paragraph 33 are met in this case. The shareholding of the appellant and the petitioner is equal. If the minority shareholders support the appellant alone, the shareholding would still be "more or less equal." There is an additional aspect in the case before us vital on the question of deadlock. This is on account of the provisions of the Articles of Association of the company which provide for an affirmative vote of the appellant and the petitioner on various issues crucial to the effective functioning of the company. We have already dealt with the relevant clauses of the Articles of Association viz. clauses 8, 16, 20 and 21. There is a complete deadlock in the company.

The judgment does not state that the deadlock can only arise on account of parity in the shareholding and representation on the Board of Directors of the company. That is only one of the situations leading to a deadlock. As we have demonstrated in the present case, there is no hope or possibility for smooth and efficient functioning of the company, as a commercial enterprise. This, therefore, is a case for winding up on the just and equitable ground.

73. The judgment in MSDC Radharamanan v. MSD Chandrasekara Raja and Anr. (2008) 6 SCC 750 relied upon by Mr. Kamdar does not support the contention either. Paragraphs 16 and 17 read as under :-

"16. The deadlock in regard to the conduct of the business of the Company has been noticed by the Company Law Board as also the High Court. Keeping in view the fact that there are only two shareholders and two Directors and bitterness having crept in their personal relationship, the same, in our opinion, will have a direct impact in the matter of conduct of the affairs of the Company.

17. When there are two Directors, noncooperation by one of them would result in a stalemate and in that view of the matter the Company Law Board and the High Court have rightly exercised their jurisdiction."

Paragraph 16 merely refers to the facts of that case viz. that there were only two shareholders and two Directors. The judgment cannot be read to mean that a case of a deadlock can arise only where there are only two shareholders and two Directors and they do not cooperate with each other. Stale-mate is a question of fact. A stale-mate is not dependent only upon the extent of the shareholding or the number of Directors on the Board of Directors of the company. It can also arise on account of the agreement between the shareholders. The case before us is an example. It would depend upon the facts of each case. For instance, an affirmative vote, as in the present case, may be required for major policy decisions even if the shareholding is unequal. The entire management and functioning of the company can be affected by such provisions. The test ought to be whether a business can be and is likely to be obstructed to the detriment of the company.

74. Mr. Kamdar submitted that a mere possibility of a deadlock is not sufficient to maintain a winding up petition on the just and equitable ground. He submitted that there must, in fact, be a deadlock for such a petition to be maintainable.

75. If the Court is satisfied that a deadlock is likely to arise in future, it must entertain the petition for winding up on the just and equitable ground. There is nothing in the Companies Act that suggests otherwise. Indeed, it would be neither just nor equitable to compel a party to stand by and permit a catastrophe to occur and then entertain the petition only as a remedial measure. It is well within the jurisdiction of a company court to interfere even earlier. Mr. Kamdar's submission is not supported by any authority. Nor do we find it well founded on principle.

76. In any event, in the case before us, there is not merely a possibility but a high degree of probability that a deadlock in the management will arise. Indeed it has arisen.

77. In the circumstance, the petition must be admitted on the ground that there is more than just a strong prima-facie case that the substratum of the company has gone with almost no hope of it being revived; there is a complete breakdown in the faith and trust between the main partners - the appellant and the petitioner and there is a total deadlock in the management of the company and on its Board of Directors.

78. This brings us to these additional reasons relied upon by Mr. Madon in support of the petitioner's case.

79. Mr. Madon stated that during the pendency of this appeal, the appellant exercised the Put Option. The appellant's claim, therefore, now can only be for money. The parties had entered into a Put Option Agreement dated 17th December, 2008. The appellant and the petitioner are referred to as the Founding Shareholder and Strategic Investor respectively. Clause 3 of the Put Option Agreement reads as under :-

"3. PUT OPTION

During the Put Option Period, and subject to the terms of this Put Option Deed (in particular Clause 6.1), the Founding Shareholder shall have the right but not the obligation, to sell the Put Shares (on the basis and with the warranties set out in Clause 7 of this Put Option Deed and Paragraphs A, B and C in Annexure C of this Put Option Deed) and to require the Strategic Investor to, and the Strategic Investor shall be obliged to purchase the Put Shares ("Put Option") at Put Price, provided that the number of the Put Shares and the Put Price shall be subject to adjustment in accordance with Clause 9."

80. The appellant, therefore, has opted to exit from the company. The appellant is entitled to adopt proceedings, including for specific performance of the Put Option Deed and/or for damages. The appellant would only be entitled to monetary relief in any proceedings to enforce the rights under the Put Option Deed. Having exercised this right, the appellant cannot have any interest in the company, irrespective of whether it continues or is wound up.

81. Mr. Kamdar, however, submitted that the exercise of rights under the Put Option Deed would not disentitle the appellant to resist the petition for winding up as the appellant may, at any time, revoke the same. In fact, the petitioner has by its letter dated 15th December, 2013 rejected its liability to pay amounts pursuant to the exercise of the Put Option right by the appellant.

82. That the appellant may withdraw the exercise of its right under the Put Option agreement would make no difference for, as on date, the appellant has not done so. It is unnecessary to consider at this stage the effect of the appellant withdrawing its action on the admissibility of the petition on this ground.

83. Having said that, however, we do not at this stage express an opinion whether this fact by itself would justify the admission of a petition on the just and equitable ground. We leave this for further consideration at the hearing of the petition.

84. Mr. Madon further submitted that the petitioner was not informed that the Reliance group of companies were also involved in the company. Had it been so informed, it would have never entered into the venture as Reliance are its competitors. The petitioner became aware of the involvement of Reliance in the company and the interest of Reliance in the said 2G license only from the PIL before the Supreme Court.

85. This may at the highest be only one amongst several factors relevant for the purpose of admitting the winding up petition. If the petitioner's contention is factually correct, it may well entitle the petitioner to exit on the terms and conditions to be fixed by the Court, but it would not necessarily by itself result in the company being wound up. This aspect would require further consideration at the final hearing of the petition.

86. Mr. Madon also submitted that the appellant had itself admitted and agreed that this is a case for winding up on the just and equitable ground. He relies upon the fact that the petitioner had filed Company Petition No.55 of 2011 under sections 397 and 398 of the Companies Act before the Company Law Board. The appellant alleged in paragraph 75 of the petition that the petitioner, its nominees and group companies have mismanaged the affairs of the company and their conduct was oppressive, burdensome, harsh and wrongful and has caused and continues to cause irreparable grave prejudice, harm and injury to the appellant. The appellant further stated : œThe facts stated herein clearly establish that it is just and equitable to wind up the company. However, the petitioner submits that to wind up the company would unfairly prejudice and cause harm and injury to the petitioner, who is a minority shareholder?.

87. We are not inclined, at this stage, to consider the effect of these averments. They are made in the context of a petition under sections 397 and 398. That petition would have to be analyzed to see whether the averments therein militate against the appellant's defence to this company petition. The grounds in support of the appellants averments in the petition before the CLB that the conduct of the petitioner herein warrants winding up on the just and equitable ground may be entirely different from the grounds upon which the petitioner herein seeks winding up of the company. This aspect must be left open for consideration, at the final hearing of the petition.

88. Mr. Kamdar raised these additional defences to the petitioner's case viz. He submitted that the petition for winding up on the just and equitable ground must be decided only on the basis of the facts as on the date of the petition and not on the hearing of subsequent facts. Alternatively, he submitted that the facts must be pleaded in the petition and cannot be introduced in affidavits. Thirdly, he submitted that fourteen creditors have opposed the petition, whereas only two have supported it.

89. Mr. Kamdar submitted that a winding up petition based on the just and equitable clause must be decided only on the basis of the facts as on the date of the petition. According to him, the facts subsequent to the filing of the petition are irrelevant and cannot be taken into consideration while deciding whether such a petition ought to be entertained. Thus, for instance, the judgment of the Supreme Court cancelling the 2G licenses, the further proceedings in the criminal cases, the reduction in the number of employees, the increased liabilities of the company after the petition was filed, are irrelevant, as these facts arose subsequent to the filing of the petition.

90. The submission is not well founded either on authority or in principle. On principle there is no reason why the subsequent facts cannot be taken into consideration. The provisions of the Companies Act do not preclude the Court from taking into consideration the facts that transpire after the petition is filed. The powers of the Company Court ought not to be curtailed in this manner. What is important is to ascertain whether or not winding up the company is in the interest of the company and its shareholders, creditors and workers. The question must be answered also keeping in mind public interest.

91. Mr. Kamdar's submission, if accepted, would be detrimental to the interest of a company and the other parties. As Mr. Madon rightly pointed out, even assuming that on the date the petition was filed, factors existed justifying its winding up, the Company Court may well refuse to winding up the company if on account of the subsequent events, the factors no longer exist. There may well be cases where the substratum of the company is gone on the date of the filing of the petition but at the time it reaches final hearing the financial health of the company has revived. It would be absurd then for the Company Court to find itself compelled to wind up the company merely because on the date on which the petition was filed, the factors for winding up the company existed. Such a view could not be in the interest of any party. It would be equally absurd in such cases to first wind up the company and then leave it to the parties to file an application for bringing the company out of liquidation.

92. Nor do we find Mr. Kamdar's submissions to be supported by any authority. The authorities are to the contrary.

93. A learned single Judge of this Court in KhimjiM. Shah v. Ratilal Damodardas Modi 1988, Mh. L.J. 38, considered an application for amendment of a petition filed under sections 397 and 398 of the Companies Act. The respondent opposed the application, inter-alia, on the ground that the amendments dealt with the events subsequent to the filing of the petition. It was contended that the subsequent events cannot be gone into in deciding the petition under sections 397 and 398. Rejecting the contention, the learned Judge held in paragraph 8 as under :-

"8. Under Rule 6 of the Companies (Court) Rules, 1959 the provisions of the Code of Civil Procedure, so far as applicable, shall apply to all proceedings under the Companies Act. The provisions relating to amendments of pleadings would, therefore, apply to amendment of pleadings under the Companies Act. There is no bar to an amendment which incorporates subsequent events if the amendment is otherwise necessary for proper determination of issue between the parties. In the case of Promode Kumar Mittal v. Southern Steel Ltd., reported in (1980)50 Comp. Cas. 555 the Calcutta High Court observed in a petition under sections 397 and 398 of the Companies Act that the Court can take notice of all subsequent events to grant reliefs finally after trial in a company matter and the interim orders passed from time to time by the Court in all applications, the meetings held under the Chairman appointed by the Court, and the resolutions passed by majority shareholders and directors present therein are all relevant. In the case of Inder Kumar Jain v. Osra Bottling Co. (P) Ltd., reported in (1977)47 Comp. Cas. 194, the Delhi High Court has held that on an analogy of Order VI, Rule 17 of the Code of Civil Procedure, the High court has power to grant leave or amend a pleading in a petition under section 397 to 398 of the Companies Act, 1956 for relief against mismanagement or oppression in the affairs of a company. In the case of Bastar Transport and Trading Co. v. Court of Wards, reported in A.I.R. 1955 Nagpur 78 the Court held that the provisions of the Code of Civil Procedure so far as applicable, would govern proceedings under the Companies Act also. There is thus no provision under the Companies Act which prohibits a Court from looking at subsequent events in a petition under sections 397 and 398 of the Companies Act."

We entirely agree with the learned Judge. The ratio of the judgment would also apply to a petition for winding up under the just and equitable clause - section 433 (f). As we mentioned earlier, we see no reason on principle to ignore the subsequent facts.

94. A learned single Judge of this Court in JerRatton Kavasmaneck v. Gharda Chemicals Limited (2001) 106, Company Cases, 25 following the judgment in Khimjiv. Ratilal (supra) rightly held that it is permissible to bring on record by amendments, not only the facts pertaining to the events upto the filing of the petition, but also subsequent events.

95. Mr. Kamdar relied upon the last sentence in paragraph 20 of the judgment of the Supreme Court in Seth Mohan Lal vs. Grain Chambers Limited (1968) 2 SCR 252, which is as follows :-

"Primarily? the circumstances existing as at the date of the petition must be taken into consideration for determining whether a case is made out for holding that it is just and equitable that the Company should be wound up, and we agree with the High Court that no such case is made out."

The Supreme Court did not hold that the subsequent events cannot be taken into consideration. Indeed the circumstances justifying a winding up order must exist as on the date of the filing of the petition. That, however, does not justify the conclusion that subsequent events cannot be considered.

96. Mr. Kamdar then relied upon the judgment of the Supreme Court in Hind Overseas Private Limited vs. R.P. Jhunjhunwala, (1976) 3 SCC, 259. Paragraph 30 of the judgment relied upon by Mr. Kamdar merely quotes the above sentence in Seth Mohan Lal vs. Green Chambers Limited (supra). It does not take the matter further.

97. Mr. Kamdar further submitted that in the case before us, subsequent factors were only introduced by the petitioner by filing further affidavits and not by amending the petition. He submitted that in any event, the subsequent facts must be pleaded in the petition by having the petition amended and cannot be introduced by filing affidavits.

98. It has been the practice of this Court to allow parties to introduce fresh evidence by amending the petition or by filing further affidavits. Pleadings in a suit are different from the pleadings in petitions, including under the Companies Act. A plaintiff must amend the plaint. The parties must be afforded an opportunity of meeting the case whether taken in the petition or on affidavit. So long as the other parties are afforded an opportunity of meeting the case, we see no reason to insist upon subsequent facts being pleaded only in the petition by having it amended. The mere reliance upon evidence, oral or documentary, is not, of course, sufficient for evidence, oral or documentary, does not constitute pleadings.

99. In support of this submission, he relied upon a judgment of the Supreme Court in SangramsinghP. Gaikwad vs. Shantidevi P. Gaikwad, (2005) 11 SCC 314. Paragraph 200 reads as under :-

"200. It is now well settled that a case for grant of relief under Sections 397 and 398 of the Companies Act must be made out in the petition itself and the defects contained therein cannot be cured nor the lacuna filled up by other evidence oral or documentary. (See Bengal Luxmi Cotton Mills Ltd., In re.)

The reference in the judgment to the documentary evidence is not to pleadings. This question whether subsequent or even additional facts must be introduced by having the petition amended or whether they can be introduced on affidavits did not arise before the Supreme Court. Nor was it decided by the Supreme Court. The judgment merely requires the case to be pleaded. It requires the case to be supported by pleadings and not just by evidence, oral or documentary. The judgment, therefore, does not support Mr. Kamdar's case.

100. In the circumstances, it is held that the subsequent facts can be relied upon by the Company Court while considering a petition under sections 433(f) on the just and equitable ground. The subsequent events may be pleaded either by amending the petition or by filing further affidavits.

101. Mr. Kamdar submitted that as only two creditors supported the winding up petition, and fourteen creditors opposed it, the petition ought to have been dismissed.

102. The number of petitioners supporting or opposing a winding up is not relevant. What is relevant is that the two creditors, who support the petitioner, have an aggregate claim of over Rs.2003.00 crores, whereas the fourteen creditors, who opposed the petition have a claim of about Rs.1000.00 crores. The learned Judge can hardly be faulted for not dismissing the petition merely because fourteen creditors opposed it.

103. In the result, circumstances certainly exist warranting an admission of the petition for winding up the company on the basis of the just and equitable clause.

104. Mr. Kamdar submitted in the alternative that even assuming that the factors warranting admission of the petition exist, the Court ought to have dismissed the petition in view of the petitioner's conduct, both before and after the winding up petition was filed.

WHETHER THE PETITION OUGHT TO BE DISMISSED ON ACCOUNT OF THE PETITIONER'S CONDUCT BEFORE THE PETITION WAS FILED :

105. We will first deal with the petitioner's conduct prior to the petition which, according to Mr Kamdar, warranted a dismissal of the petition.

106. Mr. Kamdar contended that the company was managed only by the petitioner. The petitioner was, therefore, according to him, responsible for the company's failure to meet the roll-out obligations leading to the financial loss sustained by the company. The provisions of the Management Services Agreement relied upon by Mr. Kamdar are these. Clause 1 defines services to mean such management services as the operator i.e. the petitioner deems necessary based on its experience in its sole and absolute discretion to assist the company meet the objectives performed in accordance with clause 4. The objectives include the services referred to in Appendix A to the agreement. Under clause 21, the operator/petitioner was appointed to provide the services on an exclusive basis throughout the term. Clause 4 deals with services and service performance levels. Clause 41 provides that without prejudice to the responsibility of the Board and the management and the corporate governance of the company, the petitioner shall provide the services in accordance with the agreement and subject to such systems, policies and procedures as are agreed between the parties. He submitted that the petitioner, therefore, had an almost unfettered discretion regarding the management of the company.

Mr. Kamdar also relied upon the following provisions of the shareholders agreement in this regard.

""Key Employees" shall have the meaning set out in Clause 3.6.2.

"Strategic Investor Directors" shall mean such persons (having the relevant security clearance) as are nominated as Directors on the Board by the Strategic Investor in accordance with Clause 3.1 below, and "Strategic Investor Director" shall mean any such Director;

"Strategic Investor Third Party Purchaser" shall have the meaning set out in Clause 5.6.1

3. MANAGEMENT OF THE COMPANY

3.1 Board Representation.

3.1.1 At Completion, the Board of Directors shall comprise of five (5) Directors, who shall be appointed in the manner set out below :-

(a) the Strategic Investor shall have the right to nominate three (3) Directors to the Board of Director to serve as Strategic Directors; and

 (b) the Founding Shareholder shall have the right to nominate two (2) Directors to the Board of Directors to serve as Founding Shareholder Directors, although any such Founding Shareholder Director must also be approved in writing by the Strategic Investor if he is a Competitor Director.

3.6 Day-to-Day Management and appointment of Key Employees

3.6.1 The Board of Directors shall be responsible for the day to day management of the Company and except as otherwise provided in this Agreement, all major decisions, including but not limited to major changes relating to capital expenditure, lease approvals, financing and dispositions in relation to the Company and its business shall be taken by the Board of Directors. Subject to the provisions in relation to the Affirmative Matters, the specific day to day functioning of the Company may be delegated by the Board to committees, Directors or officers, who shall exercise such powers subject to the overall supervisions and control of the Board of Directors, the Memorandum and Articles of Association of the Company and the Applicable Law. The Board of Directors shall instruct the management of the Company to operate the Business of the Company in accordance with the then current Business Plan.

3.6.2 Subject to Clauses 3.6.3 to 3.6.5 below, the Strategic Investor shall have the right to select and appoint the following senior managerial personnel of the Company;

(a) the Chief Financial Officer;

(b) the Chief Executive Officer;

(c) the Chief Operating Officer;

(d) the Chief Technical Officer; and

(e) the Chief Marketing Officer,

(collectively, the "Key Employees").

3.6.4 During the Evaluation Period, the Strategic Investor shall have the right to require the Company to terminate the employment of any Existing Key Employees, by giving notice in writing to the Founding Shareholder, the Individuals and the Company and to appoint any person as a replacement of such Existing Key Employee. The appointment of an individual as a replacement of that Existing Key Employee pursuant to the Clause 3.6.4 shall be subject to the provisions of Clause 3.12 of this Agreement, provided that the Founding Shareholder shall not unreasonably withhold its consent to the appointment of Key Employees as described above.

3.81 Quorum

3.8.1 The quorum for any meeting of the Board of Directors shall require the presence of at least one (1) Founding Shareholder Director (or his / her Alternate Director) and at least two Strategic Investor Directors (or their Alternate Directors), unless either the Founding Shareholder or the Strategic Investor, as the case may be, waive the requirement for the presence of one of their nominees. Further, the quorum for meetings of any committee established by the Board of Directors of the Company shall be the majority of members of such committee subject to the presence of at least 1 (one) member nominated by the Founding Shareholder and at least two (2) members nominated by the Strategic Investor, unless either the Founding Shareholder or the Strategic Investor, as the case may be, waive the requirement for the presence of one and two, respectively, of their respective nominees.

3.12 Affirmative Matters

3.12.1 Notwithstanding anything to the contrary contained in this Agreement;

(a) during the term of this Agreement for so long as the Founding Shareholder holds at least 40% of the Share Capital of the Company, no action or decision relating to any of the Affirmative Matters shall be taken (whether by the Board, any committee, by circular resolution by the shareholders of the Company, or any of the employees, officers or managers of the Company) unless the prior written consent of the Founding Shareholders is obtained for such action or decision, such consent not to be unreasonably withheld or delayed;

(b) during the term of this Agreement for so long as the Strategic Investor holds at least 40% of the Share Capital of the Company, no action or decision relating to any of the Affirmative Matters shall be taken (whether by the Board, any committee, by circular resolution by the shareholders of the Company, or any of the employees, officers or managers of the Company) unless the prior written consent of the Strategic Investor is obtained for such action or decision, such consent not to be unreasonably withheld or delayed;

(c) during the term of this Agreement for so long as the Founding Shareholder holds at least 20% but less than 40% of the Share Capital of the Company, no action or decision relating to any of the matters requiring a special resolution under the provisions of the Act, shall be taken (whether by the Board, any committee, by circular resolution by the shareholders of the Company, or any of the employees, officers or managers of the Company) unless the prior written consent of the Founding Shareholder is obtained for such action or decision, such consent not to be unreasonably withheld or delayed; and

(d) during the term of this Agreement for so long as the Strategic Investor holds at least 20% but less than 40% of the Share Capital of the Company, no action or decision relating to any of the matters requiring a special resolution under the provisions of the Act, shall be taken (whether by the Board, any committee, by circular resolution by the shareholders of the Company, or any of the employees, officers or managers of the Company) unless the prior written consent of the Strategic Investor is obtained for such action or decision, such consent not to be unreasonably withheld or delayed.

3.12.2 Deadlock

(a) If a proposal is made in respect of an Affirmative Matter but such proposal is not approved in accordance with Clause 3.12.1, a Shareholder may give written notice to the other Shareholders that it regards a deadlock situation as having arisen ("Deadlock").

(b) A Deadlock shall be referred to the senior management of the Founding Shareholder and the Strategic Investor within ten (10) Business Days of a notice issued under Clause 3.12.2(a). Such senior management shall endeavour to resolve the Deadlock within twenty (20) Business Days of the matter being referred to them ("Deadlock Discussion Period.")

107. Mr. Kamdar submitted that in view of the aforesaid provisions, the petitioner was entitled to do all things necessary connected with the management of the company. There is almost nothing that the petitioner could not do. He further submitted that there was not one occasion when the appellant or the other shareholders did not give their affirmative vote on any issue that the petitioner thought necessary on any decision to implement. He further submitted that the petitioner also had a complete control over the Board of Directors of the company and indeed the other shareholders could not have even done anything without the express consent of the petitioner. In these circumstances, it is the petitioner who is responsible for the company's failure to meet the roll out obligations.

Mr. Kamdar also relied upon the fact that the petitioner's representatives were the authorised signatories as regards the bank accounts and that the appellant's officers were not even entitled to sign cheques of the value of over Rs.50,00,000/- without the petitioner's consent. On the other hand, the petitioner's officers were entitled to sign such cheques without the appellant's consent. He relied upon a resolution dated 17th December, 2008, in this regard which was not on record. He also submitted that the respondents had appointed various officers/key personnel in the company.

108. The learned Judge rejected this contention stating that it cannot be held that it was only the petitioner who was in charge of the day-today affairs of the company or that all the business decisions had been taken by the petitioner; that there was equal participation, if not more, of the appellant's nominees in carrying on the day-to-day business and in taking important decisions in the matter and that, therefore, the petitioner alone cannot be blamed for non commencement or delay in the commencement of the business or for the company incurring losses.

109. Mr. Kamdar submitted that the learned Judge had only set out the rival contentions and the facts and made the above observations. In other words, according to him, the judgment does not contain any reasons. The submission is incorrect for the learned Judge has set out the facts in considerable detail and the manner in which they have been set out support the conclusion. To obviate any further grievance, we intend furnishing reasons briefly in this regard.

110. Though the shareholders agreement and the management services agreement conferred considerable power upon the petitioner, it is not merely the petitioner who managed the day-to-day affairs of the company. The participation of the appellant and its nominees/ appointees in the affairs and management of the company was considerable. This is clear from only a few facts.

111. As recorded in the minutes at a meeting of the Board of Directors held on 10th November, 2009, the management was directed to communicate to Reliance in writing the potential loss to the company and the inability of Reliance to deliver the launch scope. The communication was directed to be drafted by the solicitors and vetted by Balwa. This was an important aspect for the company and the responsibility for the same was conferred upon Balwa who was the appellant's representative.

112. The petitioner contended that despite the provisions of the shareholder agreement and the management services agreement in reality, Balwa and Goenka together with their appointees managed and controlled the company at least to a very large extent and in very important respects. Even assuming this is not so, one thing is certain. The appellant, through Balwa and Goenka and the other appointees did participate in the management of the company in significant and crucial respects. In fact, Balwa was the Managing Director of the company till he resigned on 25th April, 2011. He was also the Vice Chairman of the Board of the company. It is pertinent to note in this regard that the company never had a permanent Chairman. Balwa also attended the Board meetings as the appellant's representative. Goenka also attended meetings and even chaired some of them. Matters of considerable importance were discussed at each of these meetings.

113. The interaction with Reliance was of crucial importance for the company.

The minutes of the meeting of the Board of Directors held on 25th May, 2010, recorded that the management had requested the Board to intervene in getting sites from Reliance to meet certain obligations. The minutes record that Balwa stated that he would take up the matter with Reliance and resolve it. The minutes of the meeting of the Board of Directors held on 30th November, 2010 referred to resolving the issue with Reliance regarding availability of network sites in order to meet the roll out requirements.

It was Shahid Balwa who updated the Board about the meetings with Reliance. In fact, the petitioners appointees were directed to accompany Balwa to the said meeting.

114. Although the petitioner had the power to do so under the shareholders agreement and the management services agreement, it continued with the employees appointed prior to its participation in the company. It also appointed persons on the recommendation of the appellant. The appellant's officers admittedly had the power to issue cheques, at least to the extent of Rs.50,00,000/-.

115. It is not even the appellant's case that it had nothing to do with the management of the company. Nor is it contended that the petitioner prevented the appellant from participating in the management of the company. It was not contended that the petitioner, at any stage, obstructed the functioning of the company by refusing to accept any of the appellant's suggestions. In any event, there is no correspondence at the material time raising grievances to this effect.

116. Thus, even assuming that there was a failure to meet the business requirements, the petitioner cannot be held responsible for the same. It certainly did not disentitle the petitioner to maintain the petition for winding up if the circumstances otherwise establish that it is just and equitable to wind up the company.

117. Mr. Kamdar's submission that the petitioner ought not to be permitted to maintain this petition on the ground that it failed to meet the roll out obligation is rejected for the above reasons. The allegations in this regard are, to say the least, vague and without material particulars. Mr. Kamdar himself faced difficulty in substantiating this submission which was evident from the fact that he essentially only read out paragraph 54.1 of the affidavit in reply dated 11th April, 2012 of one Adil Patel. Paragraph 54.1 of the affidavit itself contains bare allegations and is devoid of any particulars substantiating the same. The allegations, inter-alia, are that the competitors have gained a significant market share whereas the company has not because of the petitioner's failure; the petitioner took unilateral/secret/illegal decisions; the petitioner failed to contribute its share of the capital call and failed to formulate and carry out a business plan as per the shareholders agreement and other agreements; the petitioner incurred unnecessary expenses for travel.

In the affidavit in rejoinder, the petitioner rightly contended that the allegations were without any particulars. In respect of the contention regarding the petitioner's alleged failure in rolling out the business, Mr. Kamdar reiterated the contention that the petitioner had the power and the authority under the various agreements between the parties to manage the business almost entirely at its own discretion and the failure to roll-out, therefore, must be attributed to the petitioner.

118. We dealt with this aspect earlier. As indicated above, even assuming that there was a failure to roll out, the petitioner cannot be held solely responsible for the same. The appellant also participated in the management of the business. There are no mala fides alleged against the petitioner. It is not suggested that the petitioner deliberately failed to roll out the business. It is not suggested that the appellant made valuable suggestions which were not accepted by the petitioner and that had they been accepted, the company would have done well. There is nothing to indicate that the appellant took any steps or made any suggestions which were wrong or were rejected by the petitioner.

119. Mr. Kamdar had considerable difficulty even indicating precisely what the roll out objectives were. At one stage, he indicated that the roll out obligation is as per the initial business plan set out in Schedule I to the share-subscription agreement dated 23rd September, 2008. Even assuming that to be so, there are no particulars as to which part of it was not met by the petitioner. Nor are there any particulars as to how the petitioner failed to meet the obligations. Further, this aspect of the matter does not appear to have been taken before the learned single Judge. It is not difficult to see why this point was not taken by the learned Judge. The business plan does not appear to have been crystallized at any point of time. This is evident from the minutes of the meeting of the Board of Directors of the company held on 24th August, 2011. Paragraph 6(b) is titled "EDB Way forward". It is recorded that the Board directed the management "to prepare a business plan with targeted roll out" and barter deal with other operators which would be presented to the Board after the shareholders meeting. The allegations that the company did not achieve any roll-out is incorrect. A document annexed to the affidavit dated 21st August, 2012, on behalf of the appellant belies the contention. It indicates that roll out did take place in about 16 places, including Mumbai, Chennai, Delhi, Lucknow, Bangalore and Hyderabad.

120. Mr. Madon's submission that the failure to meet the roll out obligation would, at the highest, indicate that the company had not achieved success or even a projected roll-out is well founded. In these circumstances, there is no justification for dismissing the petition on the ground that the company has not done well due to the petitioner's default. Indeed, it appears that the main cause was the cancellation of the 2G licences.

121. Mr. Kamdar then submitted that the company had suffered losses due to the petitioner having over-paid three vendors.

122. There is no substance in this allegation. The transactions with the three vendors took place in the year 2009. It is significant that the contracts had not been entered into between the petitioner with the vendors. The petitioner had merely obtained their offers and placed the same before the management. At a meeting of the Board of Directors held on 13th May, 2009, Balwa stated that the vendors proposals were higher than those of the other operators. In view of the assertion a sub-committee was formed by the company to negotiate with the vendors. The sub-committee comprised of the petitioner's representatives as well as Balwa. Even during the re-negotiation, the prices did not differ substantially. In fact, the vendors stated that they could not offer better prices. The price was thereafter unanimously approved by the board.

123. Mr. Kamdar submitted that the fact that the petitioner agreed to have the prices re-negotiated itself indicated mala fides. The submission is entirely unjustified. There was nothing surreptitious about the manner in which the petitioner went about the matter. The agreements were not even concluded with the vendors in the first instance. It is only after the sub-committee entered into further negotiations with the vendors that the price was finalized. It is not unusual for organizations to negotiate right upto the last moment. The petition, therefore, cannot be dismissed on the basis of this allegation.

124. Mr. Kamdar submitted that the petitioner had failed to obtain the Foreign Investment Promotion Board's (FIPB's) approval. The facts relied upon by him are these. Although the application was prepared in December, 2008, the application was made to the FIPB only on 3rd December, 2009. On 27th April, 2010, FIPB raised various queries. On 29th September, 2010, FIPB rejected the application for the reason that the Ministry of Home Affairs had not supported the proposal. By a letter dated 1st April, 2011, the appellant alleged that the petitioner had delayed filing the FIPB application and requested the petitioner once again to make the application at the earliest. The appellant also requested the petitioner to intimate in writing the steps taken by it to address the issue raised by the FIPB with regard to the security concerns. The appellant's grievance is that despite the same, the petitioner did not make a fresh application to the FIPB.

125. Firstly, it is important to note that the petitioner did make an application to the FIPB, but the FIPB refused to grant the approval. It cannot, therefore, be said that the petitioner had failed to make an application to the FIPB for approval. Further, the appellant had filed a petition before the CLB under sections 397 and 398 of the Companies Act in which it raised this issue. The appellant thereafter withdrew the company petition.

126. It is also important to see the appellant's case on affidavit with regard to Mr. Kamdar's contention that the failure to apply for the FIPB approval resulted in a financial crunch. As Mr. Madon rightly pointed out, assuming there was any failure on the part of the petitioner, as alleged in this regard, it affects the rights, if any, of the appellant and not of the company. In paragraph 25.14 of its affidavit in reply dated 11th April, 2012, the appellant contended that it had a Put Option Agreement dated 17th December, 2008 which, if exercised, would enable it to exit from the company by compelling the petitioner to purchase its shares at a valuation to be arrived at in accordance with the terms of the agreement. It is further alleged that the petitioner had failed to re-apply for and obtain the approval of the FIPB. It was alleged that on account of the petitioner's default in managing the company in an efficient and effective manner, the price payable upon exercise of the Put Option would stand substantially reduced.

The appellant admits that it had not exercised the Put Option even when the application for the FIPB approval was made. In fact, the Put Option was exercised only during the pendency of this appeal. In any event, even assuming that the petitioner had failed to obtain the FIPB approval, the loss, if any, was caused not to the company, but to the appellant. That, therefore, cannot be a ground for rejecting the company petition. The appellant always has a remedy in respect thereof.

127. Lastly, the contention is based on the premise that the petitioner is responsible for the poor financial condition of the company. We negated that contention earlier. This contention must, therefore, also be rejected.

128. Mr. Madon relied upon a letter dated 12th January, 2011, addressed by Balwa to the company and others in support of his contention that the FIPB approval was refused for reasons solely attributable to the petitioner. He submitted that had that been the case, Balwa would not have resigned from the Board of Directors. The letter, however, does not clearly support Mr. Madon's submission as the reason for Balwa's resignation is not clear from the letter. In fact, the letter requests the company to do the needful in respect of the FIPB approval.

129. In conclusion, therefore, the FIP approval not having been obtained, at the highest, affects only the Put Option rights of the appellant. That would be a private dispute between the petitioner and the appellant. Such a dispute cannot prevent the petitioner from maintaining the winding up petition. Secondly the record, as it stands, does not establish that the petitioner failed to obtain the FIPB approval. The learned Judge, therefore, rightly refused to dismiss the petition on this ground.

130. Mr. Kamdar relied upon the definition of "Control premium" in Clause 1.1 and on Clause 2.10 of the Share-Subscription agreement in support of the contention that if the FIPB approval had been obtained, the company would have got an amount of Rs.934.20 crores. The petitioner's failure to obtain the FIPB approval, therefore, according to him, caused a loss even to the company of the sum of Rs.934.20 crores. Clauses 1.1 and 2.10 read as under :

"1.1 Definitions

In this Agreement and unless the context requires otherwise, the following words and expressions shall have the following meaning :

........

"Control Premium" means a sum equal to Rs.9,342,000,000/- (Rupees Nine Billion Three Hundred and Forty Two Million Only) pursuant to Clause 2.1;

.......

2.10 If, following Completion and at any tie on or before the end of the Lock-In Period, the Strategic Investor acquires Shares such that all the Shares held by the Strategic Investor, represent 50% + 1 Share or more of the fully diluted Equity Capital of the Company, the Strategic Investor shall, subscribe for and be allotted 1 (one) additional Equity Share within ten (10) Business Days of the Strategic Investor acquiring such Shares. he consideration payable for such (1) one Equity Share shall be the Control Premium and shall be paid by wire transfer to a bank account of the Company in India (the details of which shall be provided by the Company to the Strategic Investor).

131. The contention is entirely unfounded even assuming that the petitioner failed to obtain the FIPB approval. There was an agreement to acquire the shares of Genex Exim Venture Pvt. Ltd. The petitioner, in any event, was not bound to acquire the same. Clause 2.10 required the petitioner to subscribe for the additional share for a value being the control premium only in the event of it acquiring 50% + 1 share of the company. The petitioner was not bound to acquire 50% + 1 share in the company. The submission, therefore, is without any substance. Even assuming that Genex Exim Ventures Pvt. Ltd. was entitled to call upon the petitioner to acquire the said share and the petitioner refused to do so, that is a matter between Genex and the petitioner. It was not even suggested that there was a tripartite agreement in this regard between the appellant and/or the company, Genex and the petitioner in this regard.

132. Further, as Mr. Madon submitted this was not even pleaded. The agreement between the petitioner and Genex is not even produced. This contention was not even raised before the learned single Judge. Even before us, it was raised only in the rejoinder. The contention cannot be permitted to be raised at this stage.

133. Faced with this, Mr. Kamdar relied upon a letter dated 8th June, 2011, in the petition filed before the CLB addressed by the appellant to the petitioner. The letter, however, is of no assistance to the appellant even assuming that in view of the above facts, Mr. Kamdar was entitled to rely upon the same in the appeal for the first time and without any pleading. The letter, in fact, states that the queries raised by the FIPB were answered. However, the application was refused despite the same. The letter alleges that the essential contractual undertaking of the parties was that the petitioner would secure the FIPB approval and complete the transfer of the call shares as defined in a Put and Call agreement between the petitioner and Genex. It is alleged that having failed to purchase shares of Genex, the petitioner did not comply with its obligation to infuse further funds into the company resulting in further commercial damage suffered by the company.

134. Firstly, this is merely a letter relied upon towards the end of the hearing before us. The letter does not establish any breach of the contractual obligations between the petitioner and the company. An understanding is alleged. An obligation on the part of the petitioner is not established. Even assuming that there is a pleading to this effect, it would essentially be a dispute between the petitioner and Genex. The same would require evidence. We are not inclined to dismiss the petition on the basis of this letter.

135. Mr. Kamdar then submitted that the petitioner obtained loans from the Standard Chartered Bank (SCB) and Citibank instead of availing the loan that had already been sanctioned by the ICICI Bank and in respect whereof the company had spent an amount of Rs.15 crores. By not availing the loan from ICICI bank, the petitioner caused a loss of Rs.15 crores to the company. The petitioner, according to him, availed of the loan from SCB and Citibank only because of the global banking relationship that the petitioner has with these banks.

136. There is no allegation of fraud or collusion between the petitioner on the one hand and SCB and Citibank on the other. It is not even alleged that the terms and conditions of the facilities from SCB and Citibank were less favourable. The appellant's only case is that it had already arranged funds at a cost of Rs.15 crores that the petitioner not having availed of the same on behalf of the company, caused the company a loss of Rs.15 crores. The petitioner has denied that it failed to utilize the loan sanctioned by ICICI bank. Different facilities had been taken for different purposes. The ICICI loan was to be used for purchase of 3G licences which were never acquired by the company. SCB advanced the facilities for the purchase of equipment under the 2G licences and the same were, therefore, utilized. The SCB loan was of the year 2009 whereas the ICICI loan was sanctioned in the year 2010.

137. The learned Judge has also rightly held that Balwa and Goenka chaired all the Board meetings at which it was decided to avail of the loans from SCB. At a meeting of the Board of Directors held on 15^th June, 2009, a resolution was passed to avail from SCB credit facilities upto an amount of Rs.1500 crores. The meeting was chaired by Balwa. Goenka also attended the meeting. At a meeting of the Board of Directors held on 15th September, 2009, the issue regarding negotiations with ICICI bank was discussed. This meeting was chaired by Goenka. Balwa attended the meeting. At a meeting of the Board of Directors held on 25th May, 2010, there were discussions regarding the loans from ICICI bank. The issue regarding the bank guarantee upto 100 million USD from Citibank was also discussed. The Board accorded its approval to the issuance of a bank guarantee in the sum of USD 70 million to Tech Mahindra and to terminate the existing bank guarantee. A resolution was passed authorizing the petitioner to avail bank guarantee facilities upto USD 100 million from Citibank.

138. The appellant and its nominees were aware of and had acceded to the facilities being availed of from SCB and Citibank. The contention, therefore, is a mere after-thought. The learned Judge, therefore, rightly rejected the contention.

139. Mr. Kamdar submitted that the petitioner contrary to its obligation under clause 4.1.5 of the Shareholder Agreement had failed to pay the call money which lead to the company facing a financial crunch. Clause 4.1.5 reads as follows :

"Agreed Infusion of Capital

 4.1.5 Subject to the cash requirements of the Company, as may be resolved by the Board, the Company can call upon the Founding Shareholder, the Strategic Investor and the Indian Investor, from time to time, for an Agreed Infusion of Capital of up to Rs.4,670,000,000 (Rupees four billion six hundred and seventy thousand only) each, per Capital Call (subject to an overall limit of Rs.8,530,000,000 (Rupees eight billion five hundred and thirty million only) from the Founding Shareholder and Rs.9,340,000,000 (Rupees nine billion three hundred and forty million only) from the Strategic Investor apportioned pro rata among them) with thirty (30) days prior written notice ("Capital Call Notice") which shall be contributed proportionately to their then shareholding in the Company by the Founding Shareholder and the Strategic Investor."

140. The Board of Directors, at a meeting held on 25th May, 2010, passed a resolution authorizing the board to issue capital call notices to the appellant and the petitioner. The minutes of a meeting of the Board of Directors held on 31st August, 2010, recorded that call notices were issued to the appellant and to the petitioner for Rs.8530 million and Rs.9340 million respectively and pursuant thereto, the appellant had paid Rs.4280 million as against the call for Rs.8530 million. The petitioner, admittedly, had not paid any amount. The explanation for this is evident from the minutes of the meeting itself. The minutes record that a resolution approving the refund of the share application money to the appellant was passed by circulation on 5th July, 2010. Accordingly, it was resolved by the Board of Directors that the Rs.4280 million received from the appellant pursuant to the capital call notice dated 25th May, 2010, issued by the company, be refunded without interest to the appellant "as the company does not require funds in the short term." There was no question, therefore, of the petitioner having failed to pay the call money. The company admittedly did not require the same. It is for that reason that the amounts paid by the appellant were refunded to it. In fact, the amounts were refunded on 14th July, 2010 and 23rd July, 2010 as per the circular resolution of 5th July, 2010. Thereafter there was no further call in accordance with clause 4.1.5 of the shareholder agreement.

141. It is also important to note that at the said meeting of 31^st August, 2010, no grievance was raised regarding the petitioner not having paid any amounts pursuant to the call notice. It was not suggested that the amounts were refunded to the appellant because the petitioner had not brought in the amounts. In fact, the resolution recorded that "the company does not require funds in the short term".

142. Added to this is the fact that the appellant, by a letter dated 7^th December, 2011, stated that it had infused the money in the company when the company had made the capital call in terms of clause 4.1.5, but that it now had project commitments and that it would not be possible for it at that time to contribute any additional equity funding in the company. The letter further recorded that should the other shareholders of the company agree to contribute such additional equity funding, the valuation and terms thereof would be subject to the appellant's approval. Thus, the appellant itself refused to bring in any further amounts and expressed its inability and refusal to bring in any amounts as it had utilized its funds elsewhere. Even this letter does not make any allegation to the effect that the petitioner had, at any time, refused to bring in amounts pursuant to the capital call by the company.

143. The petitioner's conduct prior to the petition does not disentitle it to maintain the petition. This brings us to Mr. Kamdar's contention that the petition ought to be dismissed in view of the petitioner's conduct after the petition was filed.

WHETHER THE PETITION OUGHT TO BE DISMISSED ON ACCOUNT OF THE PETITIONER'S CONDUCT AFTER THE PETITION WAS FILED :

144. Firstly, Mr. Kamdar submitted that the petitioner had admitted the dues of SCB and Citibank before the Debts Recovery Tribunal. He submitted that by doing so, the petitioner had acted to the detriment and prejudice of the company and ought not, therefore, to be permitted to maintain the petition.

145. There is really a very simple answer to this contention. The dues of the SCB and Citibank are admitted. They were and continue to be admitted, not merely by the company, but even by the appellant. It was not even suggested before us that the amounts claimed by these banks are not due to them by the company. Mr. Kamdar's grievance is that by admitting the amounts due on affidavit, albeit honestly, the company was prejudiced as a Receiver had been appointed in respect of the assets of the company. It is difficult to understand how such an argument can even be advanced. It really amounts to the appellant's saying that the amounts are due to the banks, but the company ought not to have been honest and admitted the same. It is an argument which requires merely to be stated to be rejected.

146. The company did file an affidavit dated 26th March, 2012, in which it admitted the dues of SCB to the extent of Rs.1449 crores. We will assume that the affidavit filed by one Pratap Ghose was settled by the petitioner's general counsel. Mr. Madon submitted that when the matter was heard by the DRT, Pratap Ghose was before the police in respect of a complaint and that in any event, the CEO and the CRO, one Buddhiraj and one Jham could have gone to the DRT and asked for time or instructed advocates to oppose the application. It is not even necessary to consider this submission in view of what we have already observed. To leave no room for doubt, we will refer to the submissions made by Mr. Cooper and Mr. Tulzapurkar on behalf of SCB and Citibank respectively. They are not parties to these appeals, but sought to appear in view of the allegations made by the appellant against them.

147. As pointed out by the learned Judge, the balance sheet of the company for the year ended 31st March, 2011, admitted a liability to SCB in the sum of Rs.781.80 crores secured by way of a first charge over certain equipment and a comfort letter from Emirates Telecommunication Corporation. The balance sheet was signed on 24th August, 2011, by the representatives of the petitioner and the appellant as well as the CFO of the company. The balance sheet was annexed to the appellant's affidavit dated 11th April, 2012. The unaudited balance sheet of the company for the year ending March, 2012, was submitted along with the income-tax returns of the company for the assessment year 2012-13 which also contains an admission of liability to SCB in the sum of Rs.1448.50 crores as on 31st March, 2012. The learned Judge also referred to the details of the facilities availed of by the company from Citibank, including the Board resolutions and the manner in which Citibank honoured the guarantees issued by it at the instance of the company. It is unnecessary to refer to all the transactions and the details of the transactions between the company and Citibank. It is sufficient to note that the dues of Citibank have also been admitted.

148. The loan agreements between SCB and the company were signed even by the Directors appointed by the appellant. The balance sheet admitting the liability is also signed by the appellant's nominee Director. The Authorized Person prepared the balance sheet for the year 2011-2012 in which he mentioned the dues of SCB to be Rs.1448 crores. The appellant never objected to the same. Moreover, the DRT did not grant the interim recovery certificate based only on the admissions contained in the affidavit. The order of the DRT dated 16th April, 2012, also refers to the judgment of the Supreme Court in the public interest litigation. There is also a reference to the company having insufficient funds to repay the creditors, including the employees salaries.

149. Collusion was alleged between the SCB and the petitioner on account of the SCB having agreed to keep the order of the DRT appointing the Receiver in abeyance and agreeing to the continuation of the Authorized Person. There is nothing unusual about the same. The Authorized Person was appointed initially as an interim measure by the company Judge. The assets were, therefore, protected. SCB having agreed to this arrangement whether out of deference to this Court or otherwise, cannot possibly be accused of collusion. Mr. Kamdar stated that collusion was clear as, if the assets were sold by the DRP, about Rs.1800 crores would be available and the dues of SCB were secured to the extent of Rs.800 crores. The SCB having agreed to an interim measure cannot possible be held guilty of collusion.

150. Mr. Virag Tulzapurkar, the learned senior counsel appearing on behalf of Citibank referred to the bank guarantee facility and the letters of credit facility granted to the company. Citibank is not a secured creditor. Its dues in the sum of Rs.737 crores are also admitted. Citibank, of course, not being a secured creditor, the allegation of collusion on the ground of it having agreed to the continuation of the Authorized Person is not available. The learned Judge rightly refused to dismiss the petition on account of the officers having admitted the liability of the company towards SCB and Citibank before the DRT.

151. Mr. Kamdar then submitted that the petitioner objected to the company participating in the re-auction. Although the Supreme Court cancelled the 2G licences, the parties, including the company, were entitled to participate when the 2G licences were re-auctioned. The grievance is that the petitioner objected to the same. It is true that the petitioner objected to the same. The objection, however, was the subject matter of an application before the company Judge. The company Judge upheld the objection. The Division Bench upheld the order. The orders have attained finality. It is not open for us now to take a different view of the matter. It cannot be presumed by us, despite the said orders, that the petitioner's objection was unreasonable or detrimental to the interest of the company. If it was in the interest of the company to bid at the re-auction, the company Judge would have allowed it to do so.

152. Mr. Kamdar submitted that the Supreme Court judgment did not prevent the company from bidding at the re-auction. Further, the petitioner objected to the company bidding at the re-auction. Had the bid been accepted, the business could have gone on as the infrastructure was already there.

153. We would have to speculate to a considerable extent to dismiss the petition on this ground. Firstly, it is doubtful whether the amounts deposited could have been set off against the bid. Secondly, the Court Receiver had been appointed by the DRT in the Original Application filed by the SCB. Mr. Kamdar submitted that had the bid been accepted, an application could have been made for modification of the order appointing the Court Receiver, by permitting the company to act as the agent of the Court Receiver. This, however, would in any event have required a large scale funding. There is nothing to indicate that funds could have been made available.

154. There is, however, another and more important reason why the petition cannot be dismissed on the ground that the petitioner objected to the company bidding at the re-auction.

(A) The appellant had, in fact, filed Company Application (Lodg) No.616 of 2012, before the learned Judge to permit the company to bid at the re-auction. The petitioner opposed this application. The learned Judge, by an order dated 18th October, 2012, rejected the application. The learned Judge observed that the appellant had sought directions against the company even to request the DRT to treat the amount of Rs.1600 crores deposited with the Government of India towards the original allotment of the licences as earnest money. The learned Judge observed that this could not be allowed in view of the fact that the Court Receiver had been appointed by the DRT of the assets of the company which would include the said sum of Rs.1600 crores. The Division Bench, by an order and judgment dated 19^th October, 2012, in Appeal (Lodg) No.753 of 2012, confirmed this order. The Division Bench rejected the application, inter-alia, on the ground that the Directors appointed by the appellant had resigned and that a Receiver had been appointed by the DRT. The Division Bench also noted that the company did not at that stage have resources sufficient to fund a possible contractual obligation.

(B) An application being Company Application (Lodg) No.71 of 2013 was made for the second round of the auction in January, 2013. This was also opposed by the petitioner. The learned Judge observed that in view of the serious disputes between the two major shareholders and in view of the order dated 18th October, 2012, in Company Application (Lodg) No.616 of 2012, the application was not maintainable. The learned Judge also held that it would not be possible to allow the company to adjust the amount of Rs.1600 crores deposited with the Government of India towards the allotment of the 2G licences and directing the Authorized Person to pay about Rs.300 crores could not be allowed for several reasons, including that the income tax authorities had attached an amount of about Rs.1538 crores by an order dated 10th January, 2013, under section 281-B of the Income Tax Act. The DoT had contended that the company was not entitled to the refund of the amount of Rs.1538 crores paid by it for the 2G licences. The DoT itself had a claim of over Rs.1000 crores against the company. There were claims of about Rs.4000 crores against the company. The Authorized Person, however, rejected the suggestion in view of the previous orders. The appellant, therefore, applied to the company court. By an order and judgment dated 21st February, 2013, the learned Judge rejected the application. The appellant did not challenge this order.

155. The above orders have attained finality. We cannot go behind these orders. It would amount to re-opening the issue which stands concluded by the orders not only of the learned single Judge, but of the Division Bench as well. In view of the previous orders of this Court, we did not permit Mr. Madon to re-argue this issue on merits.

156. Mr. Madon submitted that the Board of Directors had unanimously agreed to shut down the business of the company relevant to the 2G licences. In other words, he contended that it was decided at the said meeting to wind up the company. Mr. Kamdar denied the same. He contended that the petitioner had unilaterally decided to shut down the business. The decision is contrary to the provisions of the agreements between the parties. He, in fact, submitted that in view thereof the company suffered a severe set back and even on that ground, the petition ought to be dismissed.

157. The first question, therefore, is whether the Board of Directors had unanimously agreed to shut down the company's business. From the record, it is difficult to come to a definite conclusion at the stage of admission. It would be necessary to consider this aspect in greater detail at the hearing of the petition. According to the petitioner, in the light of the judgment of the Supreme Court, the financial position of the company and the absence of any further source of funding, it was decided at a meeting of the Board of Directors held on 22nd February, 2012, to shut down the network and operate the company on a cash management basis going forward. The appellant denied that such a resolution had been passed at the said meeting. According to the appellant, the company resolved to file a review petition before the Supreme Court. According to the appellant, the nominee Directors of the company unilaterally passed a resolution to immediately shut down the operations of the company which effectively negated the filing of the review petition. It is further contended that such a resolution required an affirmative vote of the appellant which it did not give. The appellant, in fact, contends that at the said meeting, it was resolved to file a review petition before the Supreme Court.

158. Mr. Madon had relied upon the minutes of a meeting held on 22nd February, 2012, which recorded that Goenka and Balwa had confirmed their vote in favour of shutting down the network. The minutes also mentioned that the Board directed the management to take all necessary and proper steps accordingly and provide a complete network shut down plan to the Board. Mr. Kamdar stated that the appellant did not respond to these minutes as the petition had already been filed.

It is difficult at this stage to express a final opinion in view of the fact that the appellant, on receiving the draft minutes of the meeting, denied the correctness thereof the very next day by a letter dated 23rd February, 2012. On the other hand, the decision to file a review petition before the Supreme Court is not necessarily inconsistent with the Board of Directors having agreed to shut down the business for such a decision could always have been revoked had the review petition been allowed.

159. The appellant did make a grievance regarding the petitioner having immediately informed the Abu Dhabi Securities Exchange about the decision to shut down. That, however, according to the petitioner, was as per the requirements, inter-alia, in view of the fact that the Government of UAE is the major shareholder of the petitioner. The appellant also made a grievance about the petitioner having informed all the shareholders alleging that the company had unanimously resolved that the appropriate course of action was for the company to terminate its 2G licences. This also is an issue which must await the final hearing of the petition. On this aspect a lot would depend upon the conclusion whether the decision to shut down was unanimous or not.

160. At Mr. Madon's instance, we watched a video recording of the meeting. We are not inclined at this stage to express any conclusive opinion on the basis of this video for admittedly the entire meeting was not recorded. This aspect of the matter would require further consideration. On the one hand, the entire meeting was not recorded. On the other hand, it is not the appellant's case that any other part of the meeting was recorded, but was not produced. Further, assuming that objections were raised during the earlier part of the meeting, there does not appear to have been any objection raised at the time of passing the resolution. The appellant itself in the affidavit-in-reply stated that the recording only commenced towards the very end of the meeting. The transcript of the video recording of the Board meeting held on 22nd February, 2012, has been denied by the appellant. The denial was communicated by the appellant on the very next day by a communication dated 23rd February, 2012.

161. Mr. Madon also relied upon the references to shut down in a meeting held on 19th February, 2012, and the fact that though the appellant had responded to the same and raised an objection regarding some items, it raised no objection regarding the issue of shut down. As we mentioned earlier, it is difficult at the stage of admission of the petition to express any conclusive view on the issue whether the appellant had agreed to shutdown the business of the company insofar as it related to the 2G licences.

162. However, even assuming that the petitioner is unable to establish that the appellant agreed to shut down, it would make no difference. It would make no difference even if we were to presume that an affirmative vote of the appellant was required in respect of the shut down and that the appellant had not given its affirmative vote. Even assuming that the appellant had not agreed to shut down, it would not prevent the petitioner from maintaining a petition for winding up the company, including on the just and equitable ground. That is a right independent of the alleged contractual right of the appellant to refuse its affirmative vote to shut down a particular part of the business of the company. If the petitioner is able to make out a case for the admission of the petition on the other grounds, the petition cannot possibly be dismissed on the ground that the appellant has refused to shut down a part, albeit a major part of the business of the company.

163. The documentary evidence does not establish this point conclusively one way or the other. The letter dated 28th February, 2012, addressed by the CRO of the company to TRAI refers to the network shut down. The letter, however, is of no assistance in deciding whether the appellant's nominees had agreed to the same.

164. Even assuming that the petitioner wrongly purported to shut down the business of the company relating to the 2G licences, it would make no difference. Mr. Kamdar himself had contended that the purported resolution, in any event, was not to wind up the company, but only to discontinue the business relating to the 2G licences. The purported resolution is of 22nd February, 2011. By that time, the Supreme Court had already cancelled the 2G licences. The substratum of the company had, inter-alia, on account thereof, already gone. In other words, the substratum had not gone merely on account of an alleged wrongful decision to shut down the business of the company relating to the2G licences. Had the review petition been allowed, it may have a different thing altogether. It is neither necessary nor possible to speculate on the outcome had the decision been reviewed. The fact is that it was not. All the circumstances discussed by us entitling the petitioner to maintain this petition would, therefore, remain unaffected even assuming that the petitioner had wrongly decided to shut down the business of the company relating to the 2G licences. Further, it is important to note that the appellant took no steps to resist this alleged illegal action of the petitioner in shutting down the business of the company relating to the 2G licences.

165. The mere fact that there is no question of the petitioner or any of its officers or nominees being charge-sheeted in respect of the 2G licences would not be a ground for dismissing the petition. It is true that the petitioner and its Directors, officers and nominees came into the picture only after the 2G licences were obtained. Indeed, they appear to have come into the picture on the basis of the assurance that the 2G licences were valid and had been validly acquired. That, however, is not a ground for preventing the petitioner from having the company wound up if it is otherwise entitled to such an order.

166. The learned company Judge passed an order dated 3rd July, 2012, in terms of the minutes of the order signed by the advocates of the parties. The learned Judge appointed an advocate and solicitor of this Court as an Authorized Person to manage the affairs of the company during the pendency of the petition and in the manner mentioned therein. The learned Judge, by the impugned order, continued the arrangement under the minutes of the order. Mr. Kamdar objected to the same on the ground that the company court has no power to appoint any person other than the Official Liquidator either as a Liquidator or as a Provisional Liquidator. The order in terms of the minutes of the order was passed with the consent of the parties prior to the petition being admitted. The appellant was not willing to consent to such an order at the hearing of the petition for admission. The order, therefore, according to him, cannot be continued.

167. Before dealing with Mr. Kamdar's submission it is necessary to note the nature of the minutes of order. The Authorized Person was permitted to make decisions or recommendations as specified in the order to protect and preserve the assets of the company and to adopt such measures as may be required in furtherance of such decisions. The Authorized Person was to be assisted by two nominees, one to be appointed by the petitioner and other to be appointed by the appellant. The decisions/recommendations regarding the management / affairs of the company were to be taken solely by the Authorized Person. The nominees were entitled to raise issues for the consideration of the Authorized Person. The Authorized Person was entitled to suo moto take up any issue. The mode in which such issues were to be dealt with was prescribed. This included the Authorized Person making a report or reports on issues involving payment on behalf of the company. The Authorized Person was also directed to identify employees of the company to be retained as well as to terminate the employment of others. The Authorized Person was to act under the supervision of the Court and to file a report on his activities every two weeks.

168. It is not necessary to consider the question of law raised by Mr. Kamdar that the company has no power to make such an order, absent consent from the parties concerned. If the company court had the power to do so, we would without hesitation have continued the same solicitor of this Court as the Authorized Person. There are no allegations against him either of mala fides or of incompetence. He has discharged his duties in accordance with his mandate and as per the orders of this Court. Indeed, under the minutes of the order several steps of far reaching consequences have already been taken, including regarding the termination of the services of various officers and employees of the company and the sale of certain assets of the company. Further, the Authorized Person has also engaged other lawyers to the company, in accordance with the directions and wishes of the appellant and the petitioner, before the authorities and courts. For instances, by an order dated 29th October, 2013, as confirmed by an order of the Division Bench dated 13th November, 2013, the Authorized Person has been assigned the task of receiving submissions/objections from the petitioner and respondent No.2 and thereafter instructing a firm of advocates to cross examine the prosecution witnesses in Criminal Case No.1 of 2011 (CBI v. A. Raja and Ors.) on behalf of the company.

169. We will assume for the purpose of this appeal that the Court has no power to pass an order for the appointment of the Authorized Person and to confer upon him the powers akin to those contained in the minutes of the order. Having come to the conclusion that the appeal deserves to be dismissed, we are entirely in agreement with Mr. Madon that a Provisional Liquidator, at least, must be appointed. Accordingly, by this order we have appointed the Provisional Liquidator. We direct the Provisional Liquidator to appoint the Authorized Person as an advocate to assist the Provisional Liquidator in the discharge of his functions in respect of the company. The Authorized Person has, as we mentioned earlier, been involved in the matter for a long time and he is aware and well informed regarding the affairs of the company. It is in the interest of the company, therefore, that the Provisional Liquidator has the assistance of the present Authorized Person as an advocate. It is clarified that the Authorized Person would be entitled to make recommendations and suggestions to the Provisional Liquidator. The Provisional Liquidator shall thereupon make a representation to the company court in respect of such recommendations and suggestions. Ultimately, it is the learned Judge who must take the decision on issues raised in such reports.

170. Mr. Kamdar submitted that interim orders, especially of sale of the assets of a company cannot be made in a petition for winding up, except at the final hearing of the petition. He submitted that the reports, if any, for interim reliefs cannot be entertained by the company court.

171. The appointment of a Provisional Liquidator is made by the company court, inter-alia, to preserve and protect the interest of the company. The manner in which it is done is not specified in the Companies Act. It would depend upon the facts of each case. Normally, the endeavour of the Provisional Liquidator and of the company court is to manage the affairs of the company in such a manner as to ensure it's continued existence. That, however, does not preclude the company court from passing interim orders. Indeed, interim orders in many cases are imperative to ensure the fulfillment of these objectives which are in the interest of the company. Normally again, the powers must not be exercised in a manner which would result in the company being wound up even before the petition is heard finally. At the final hearing the Court may well dismiss the petition or pass such other orders which would not necessarily result in the petition being wound up. If, in the meantime, all the assets of the company are sold and orders are passed which, in effect, results in the company being wound up it would result in the company being faced with a fait accompli.

172. There is, however, no absolute rule as to the manner of exercise of powers of the company court during the period prior to a petition for winding up being finally heard. As we mentioned earlier, interim orders in many cases are not merely necessarily, but imperative in the interest of the company. An obvious example is the disposable of perishable assets of a company. Where a Provisional Liquidator is appointed, it is only the Provisional Liquidator who can deal with the assets of the company. It can hardly be suggested that it is in the interest of the company to let such assets decay and lose all value during the pendency of the petition. There may be assets such as heavy machinery which are no longer useful for the company. It would serve no purpose compelling the company to retain such assets during the pendency of the petition. The company court would be justified in ordering the sale of such assets. The company court would also be justified in taking decisions regarding the continued employment or the terms and conditions of employment of the officers and employees of the company. There may be cases where the company requires further personnel. The company court would then be justified in passing orders to engage such persons. On the other hand, there may be cases where the services of certain officers of the company are no longer required. In such cases, there is no warrant for compelling their continuance with the company.

173. The reliance upon section 443(1)(c) of the Companies Act in support of the contention that the company court has no power to pass interim orders in a winding up petition is not well founded. Section 443(1) reads as under :-

œ443. Powers of Tribunal on hearing petition.-(1) On hearing a winding up petition, the Tribunal may “

(a) dismiss it, with or without costs; or

(b) adjourn the hearing conditionally or unconditionally; or

(c) make any interim order that it thinks fit; or

(d) make an order for winding up the company with or without costs, or any other order that it thinks fit;

Provided that the Tribunal shall not refuse to make a winding up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets."

174. The opening words of the section œOn hearing? are not restricted to the final hearing of the petition. This would be adding words to the plain language of the section. This is clear from section 443 itself. For instance, section 443(1)(b) entitles the company court to adjourn the hearing "conditionally or unconditionally". The power to adjourn the hearing of a petition "conditionally" includes the power to pass interim orders. That is clear from the word œconditionally?. There is nothing in section 443 that restricts the ambit of the words œon hearing? as suggested by Mr. Kamdar.

175. The judgment of a Division Bench of the Madras High Court in the case of Ramakrishna Industries (P) Ltd. and Ors. v. P.R. Ramakrishnan and Ors. 1988 64 Company Cases 425, relied upon by Mr. Madon, supports this view. In that case, the Official Liquidator was appointed as a Provisional Liquidator. The application for injunction was opposed on the ground that the main winding up petition had not been set for hearing and, therefore, section 443 could not have been invoked by the applicant. The Division Bench held as under :

"Against this order, O.S.A. No.128 of 1981 has been filed. By another order dated December 7, 1981, in C.A. No.843 of 1981, the learned Judge appointed the official liquidator as the provisional liquidator pending the winding-up petition. Against this order, O.S.A. No.189 of 1981 has been filed.

Both before the learned single judge and before us, learned counsel for the appellants questioned the maintainability of the application for injunction. This was on the ground that the main winding-up petition was not set for hearing on that date and that, therefore, section 443 of the Companies Act cannot be invoked by the applicants and that the applications cannot also be sustained either under Order 39, rule 1, of the Civil Procedure Code or rule IX of the Companies (Court) Rules, 1959.

The relevant portion of section 443(1) reads :

(a) dismiss it, with or without costs; or

(b) adjourn the hearing conditionally or unconditionally; or

(c) make any interim order that it thinks fit; or

(d) make an order for winding up the company with or without costs, or any other order that it thinks fit;

The argument of learned counsel for the applicants is that on July 13, 1981, the learned judge has ordered notice for the hearing of the company petition on August 11, 1981, and only when the company petition was to be taken up for hearing on August 11, 1981, the court would get jurisdiction to make any interim order and not on the date when the company petition was admitted and notice of hearing was ordered. We are of the view that the hearing of the winding-up petition starts even on the day when the winding-up petition is admitted and entertained and the order of notice for the hearing to the respondents after deciding to entertain would amount to a hearing of the winding-up petition itself. The words "on hearing a winding-up petition" would cover the entire period from the date of entertainment and issuing of notice till an actual order of winding-up is made or the winding-up petition is dismissed. "Hearing" does not mean hearing the respondent to the company petition. Hearing of the petitioner for the purpose of admitting the petition and issuing notice is also part of the hearing of the winding-up petition. In fact, the Supreme Court in Hind Overseas (I) Ltd. v. Raghunath Prasad Jhunjhunwalla (1976) 46 Comp Cas 91 held (at page 108):

"A prima facie case has to be made out before the court can take any action in the matter. Even admission of a petition which will lead to advertisement of the winding-up proceedings is likely to cause immense injury to the company if ultimately the application has to be dismissed. The interest of the applicant alone is not of predominant consideration. The interests of shareholders of the company as a whole apart from those of other interests have to be kept in mind at the time of consideration as to whether the application should be admitted on the allegations mentioned in the petition."

Again, section 441(2) specifically states that the winding-up of a company by the court shall be deemed to commence at the time of the prosecution of the petition for winding-up and, therefore, from the date of presentation of the winding-up petition, the court gets jurisdiction. Section 450 also makes this very clear. Sub-sections (1) and (2) of this section provide that at any time after the presentation of the winding-up petition and before the making of the winding-up order, the court may, for special reasons to be recorded in writing, dispense with the notice to the company and appoint a provisional liquidator straight-way. These provisions clearly establish that the court's jurisdiction to make interim order is not postponed till the date set for hearing of the company petition after notice to respondents. In fact, this point is concluded by a Bench decision of this court in Ramakrishna Industries P. Ltd. v. P.R. Radhakrishnan (1983) II MLJ, 227. It may be mentioned that that case also related to the same company. On the same day along with CA Nos. 843 and 844 of 1981, the respondents herein also filed CA No. 845 of 1981, for the appointment of a Court Commissioner to take an inventory of the assets and accounts of the company. That application also came up for orders along with these applications which are the subject matter of the appeals and by an ex parte interim order made on July 13, 1981, the learned company court judge appointed a Commissioner and that was questioned in the appeal. One of the objections of the appellants was that the learned judge had no jurisdiction to pass an interim order under section 443(1)(c) at the stage of admission of the winding-up petition and that only at the time of the hearing of the winding-up petition the company court can make interim orders. While rejecting this contention, the Bench has observed (at page 233).

"In our judgment, the investiture of the court with the winding up jurisdiction, as of other powers, must be interpreted as adding to the gamut of the court's existing jurisdiction. It would be a mistake to interpret the statute as stripping the court of all his powers first, and then conferring on it only such powers as are permitted, say by section 443(1) and other related provisions. We are satisfied that having regard to the scheme of the Companies Act, we cannot read any provision in the statute which relates to jurisdiction of courts, as being in derogation of the full plenitude of the court's powers under the common law, unless we can find in it a clearly expressed or equally clearly implicit, bar of restriction of the court's jurisdiction."

176. In our view, the power of the company court to pass interim orders commences from the time the petition for winding-up is presented / lodged / filed. There are cases where it is necessary to pass urgent interim orders the moment the petition is filed. This would be so irrespective of whether the petition for winding up is on the ground that the company is unable to pay its dues or on the ground that it is just and equitable to do so.

177. We, however, wish to make it clear that we do not approve of the observations of the Division Bench of the Madras High Court which follow the extracts quoted above. These observations were quoted by the Division Bench from an earlier judgment in a case between the same parties reported in (1983) II MLJ 227. For instance we, with respect, do not agree with the observation that there was a folly on the part of the draftsman of section 443. Nor do we agree that section 443(1)(b) is an insane provision or that the draftsman there was dense.

178. This judgment was followed by a learned single Judge of the Karnataka High Court in Smt. Usha R. Shetty and Ors. v. Radeesh Rubber Pvt. Ltd. and Anr. 1995 84 Com. Cases 602. The learned Judge held as under :

"Learned counsel, referring to section 536(2) of the Companies Act, has submitted that no transfer of the assets during the pendency of the winding up petition should be effected. As per section 536(2) in the case of winding up by or subject to the supervision of the court, any disposition of the property (including actionable claims) of the company, and any transfer of shares in the company or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void. Thus, it clearly indicates that the court has power to order transfer or to sell the assets of the company when the winding up petition is pending. There is no inherent indication in the section so as to warrant the conclusion that this power can be exercised only after the winding up order is made. It is difficult to spell out the limits on the jurisdiction of the courts from the opening words in the section, viz., "in the case of winding up" so as to mean "only if the company is ordered to be wound up". It would be reading more than what the Legislature intended in the said wording. I am of the view that the court can exercise jurisdiction under section 536(2) of the Act even before the winding up order is made. The fact that the order becomes otiose, if the application for winding up is ultimately rejected, does not take away the jurisdiction. Therefore, even before the winding up order is made, the jurisdiction of the court can be invoked under section 536(2) of the Act for permission for disposal of the assets of the company. The contention of Mr. Jayaram, learned counsel appearing for the second respondent, in view of the decision of the Supreme Court as well as the decision of the High Court referred to above, is unsustainable.

I am also of the view that, at the stage of entertaining the winding up petition or admitting the winding up petition and on further hearing of the respondent after deciding to entertain the winding up petition, the court has inherent power to do that which is necessary to advance the cause of justice or make such orders which are necessary to meet the ends of justice. This inherent power of the court is not taken away or in any way restricted by section 443(1) of the Companies Act."

We are in respectful agreement with the learned Judge. We, however, express no opinion on the observation that an order of sale would be otiose if the application for winding up is rejected.

179. The judgment of the Division Bench of the Punjab and Haryana High Court in Altos India Ltd. v. Bharati Telecom Ltd. (2001) 103 Com. Cases 6, does support Mr. Madon's submission. In that case, the learned company Judge had ordered the sale of the properties of the company even before the company was actually wound up on the ground that the company was heavily indebted to various financial institutions and that the sale of the machinery even before the final order of winding up would benefit all the parties concerned, including the company by reducing its liability to the maximum extent. The issue of law, however, was not discussed in detail.

180. We, therefore, reject the contention that the power of the company court to pass interim relief is only when the company petition is finally heard. The power of the company court to grant interim reliefs commences upon the presentation of the petition itself.

181. On 20th December, 2013, Mr. Chirag Modi, the learned counsel who also appeared on behalf of the appellant sought to delete grounds J, Q, V, W and SS of the Memo of Appeal. The appellant was permitted to amend the Memo of Appeal by deleting grounds J, Q, V, W and SS therein. We may also note that Mr. Madon stated that this application was made after his contention on the previous day that the grounds constituted contempt of court.

182. In the circumstances, the impugned order admitting the company petition and the consequential orders is upheld. The judgment is modified only to the limited extent of appointing the Official Liquidator as the Provisional Liquidator of the company and directing the Provisional Liquidator to appoint the Authorized Person as a legal advisor on the same terms and conditions as to his remuneration as fixed by the company court. The Provisional Liquidator shall submit reports, including on the recommendations/suggestions of the legal advisor.

The appeal, accordingly, stands disposed of.

The operative part of this order shall remain stayed, upto and including 15th July, 2014. It is clarified that the petition shall not be advertised till 15th July, 2014. The time to deposit the amount of Rs.10,000/- towards costs of advertisement is extended till further orders of the learned company Judge. Liberty to apply in this regard. Till 14th July, 2014, the modification of the impugned order shall also remain stayed.