B.P. Gupta and Others Vs. Standard Enamel Works (P.) Ltd. - Court Judgment

Excerpt:
the case focused on the petition filed under section 433 read with section 434 of the companies act, 1956, for winding up of the company - the said petition was filed jointly with another share-holder and a director of the company - it was ruled that the provisions of civil procedure code, 1908, would be applicable on the proceedings - further, on account of improper verification in the affidavit of the director and the shareholder, directions were given to amend the petition - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - counsel submits that reading section 433 and 434 together, such a joint application is clearly permissible.s.b. wad, j.1. this is a petition purportedly filed under section 433 of the companies act, 1956. petitioner no.1 mr. b.p. gupta, is the creditor of the company and petitioners nos.2 and 3, viz., shri suraj prakash gupta and shrimati madhuri gupta, are the shareholders/ directors. petitioner no. 1 has claimed that the respondent company has not returned the loan of rs. 1,26,334.46 in spite of repeated demands. he has further claimed an amount of rs. 18,000 by way of salary as the secretary of the respondent company for the period between april 1, 1984, to march 31, 1985. so far as petitioners nos. 2 and 3 are concerned, the allegations are that they are illegally kept out of the management of the company. there are further allegations of mismanagement of the company, such as the illegal resolutions to appoint the chairman, the accumulation of losses of the company being far more than the paid-up capital and the losses exceeding 20 per cent of the paid-up capital. it is claimed that it is just and equitable to wind up the company, particularly so because the company is in the nature of a partnership. 2. a preliminary objection is raised by the respondents on the ground of the maintainability of the petition. it is submitted on behalf of the respondents that there cannot be a joint petition by a creditor and shareholders/directors. it is pointed out that such a misguide is contrary to order 1, rule 1 and order 2, rule 3. it is further asserted that rule 6 of the companies (court) rules, 1959, does not change the rule of misguide of parties and the cause of action as envisaged by the civil procedure code. counsel for the respondent has relied upon air 1973 hp 23 (sic) in support of his submission. 3. in reply to the objections of the respondents, counsel for the petitioners submits that there is no bar for a joint petition by the creditor and the shareholder/director. counsel submits that reading section 433 and 434 together, such a joint application is clearly permissible. under order 1, rule 1 civil procedure code, several plaintiffs can be joined in one suit, but the right to relief must arise out of the same act or transactions or series of common acts or transactions. it is also necessary that these should a common question of law and fact. the petition of petitioner no. 1 can be founded only on the commercial insolvency of the company. on the other hand, the petition of petitioners nos. 2 and 3 is based on acts mismanagement and oppression. the requirements of order 1, rule 1, are not and cannot be fulfillled in the present petition. but the petition cannot be saved under order 2, rule 3, civil procedure code, either, because the cause of action in the two sets of allegation are quite different. section 433 and 434 of the companies act provide the substantive heads under which a company petition can be filed. they do not lay down any procedure. rule 6 of the companies (court) rules, 1959,refers to the practice and procedure of the court and the application of the civil procedure code. this rule is also not of any avail to the petitioner. the rule provides that the practice and procedure of the court shall be governed by the code of civil procedure, 'save as provided by the act or by these rules .' there is no separate procedure prescribed under section 433 and 434 of the companies act in regard to the joinder of parties or causes of action. 4. there is yet another hurdle in the way of the petitioners. the petition is supported by an affidavit filed by petitioner no. 1 who is only a creditors. the allegations in regard to mismanagement and particularly the exclusion of petitioners nos. 2 and 3 from the management are matters of personal knowledge of petitioners nos. 2 and 3. they have not filed any affidavit supporting the petition. it is also correct that the affidavit is not properly verified as required by the civil procedure code. it is a general verification stating that the contents of the above affidavit are true to ' my ' knowledge. the source of knowledge is not disclosed. 5. it has been brought to my notice that a similar petition was filed by the petitioners in 1980 being c.p. no. 64 of 1980. that petition was dismissed as withdrawn on march 3, 1981. while dismissing the petition, bb.n. kirpal j. has observed : ' in view of the fact that some technical objections have been raised by the respondents with regard to the form of the petition, counsel for the petitioners wants to withdrawn this petition with liberty to file a fresh one'. it appears that the present petition also suffers from several legal infirmities. 6. the present petition can be treated as a valid petition only in regard to petitioner no. 1 and only in regard to the cause of action on the alleged dues on account of loan and salary. the petition be amended accordingly and the amended petition be filed. let the petition be listed for admission on merits on july 14, 1986.