Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | 433(1) and 439: Companies Act 1996 Ss.425 432 431 430 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Companies Act, 1956 (1 of 1956) |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Others |
Headnote | Companies Act, 1996; Ss.425, 430, 431, 432, 433(1) and 439:Winding up petition - A foreign company and an Indian company setting up a Joint Venture company - Joint Venture Agreement - Indian company filing a suit against the foreign company circumventing dispute resolution provision in the agreement - Dead Jock in management of Joint Venture - Termination of agreement and filing of winding up petition by appellant-foreign company - Allowed by Company Judge holding it to be maintainable - Filing of appeals by constituent company-Partly allowed by Division Bench of the High Court as not maintainable as 'contributory' but remitting the matter to Company Judge on question of maintainability of the petition on ground of-capacity of appellant company as creditor -Appeal.and cross appeal- Held: S.439 of the Act couched in positive asĀ· well as negative words - Sub-section (1) of Section 439 permitting all the persons, as enlisted, to file petition for winding up of the company- However, sub-section (4) of Section 439 declares that a contributory cannot file such petition unless shares in respect of which he is contributing have been originally allotted to him or held by him and registered in his name or devolved on him through former holder after his death - Since appellant-foreign company did not put forth its claim under provisions of clause (a) of s. 439( 4 ), it could only make such claim in terms of clause (b) of s.439(4) - Since appellant company not registered in the Register of the company, it is not entitled to file the winding up petition - Division Bench of the High Court rightly held that the phrase "have devolved on him through the death of the holder' in part (iii) of section 439(4) would apply to natural person and not to juristic person where death normally refers to seizing a life of natural person -Provision u/s.439(4) exhaustive in nature and its sweep cannot be extended by judicial interpretation - Hence, winding up petition by appellant-company in its capacity as contributory not maintainable.Maintainability of the winding up petition in the capacity of the appellant as Creditor - Held: In terms of the decision of Division Bench of. the High Court, appellant could raise contention before the Company Judge as to maintainability of the petition in the capacity as a creditor and also on the ground of premature advertisement.Words and Phrases:'Have devolved on him' and 'death' - Meaning of in the context of s.439 (4) of the Companies Act, 1956. |
Judge | Hon'ble Mr. Justice C.K. Thakker |
Neutral Citation | 2008 INSC 211 |
Petitioner | Severn Trent Water Purification, Inc. |
Respondent | Chloro Controls (india) Private Ltd. & Anr. |
SCR | [2008] 2 S.C.R. 1127 |
Judgement Date | 2008-02-18 |
Case Number | 1351 |
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