Gujarat High Court
Mohanlal Dhanjibhai Mehta vs Chunilal B. Mehta And Ors. on 1 January, 1800
JUDGMENT
1. The main relief sought in the petition was under section 153C of the Indian Competences Act, 1913, and the relief lot Winding up was only an alternative relief. The learned Advocate-General who appeared on behalf of the petitioner do not press for the relief under section 153C of the Indian Companies Act , 1913, but confined his arguments to the alternative relief for winding up. This he could do, because even for claiming relief under section 153C of the Indian companies Act, 1913 the petitioner had to establish that the facts where such as to justify the making of a winding up order son the ground that it was just and equitable that he company should be wind up and the it was because his submission to wind up to company would unfairly and materially prejudice the interests of the company of any par of its members that the petitioner did not want the company to be wound up but wanted relief under section 153C of the sundown companies Act, 1913. Thee petitioner had sin any event to establish that it was and equitable to wind up the company. If the facts ware such as justified the making of a winding-up over on the ground that it was just and equitable to do so, the petitioner could always abandon the relief under section 53C of the Indian companies Act, 1913, and ask the court to makes an order for compulsory winding up of the company. The only point which In have , therefore, to consider in the present case is whether theses are sufficient reasons foe making a compulsory winding up order against the company on the ground that it is just and equitable that the company should be around up.
2. Before I proceed t deal with the arguments advanced by the learned Advocate-General in support of the petition, I must observe that this is a shareholder's petition . The principles applicable in dealing with a shareholder's petition are now well settled and may be stated in the following words of Chigger. J. (as she then was ) in In re Cine Industries and Recording company Ltd.1 at page 398:
"It is tree that as the law stands to-day he is under no disability as compared with a contributory nor is he under any obligations,ass he at one time was, to satisfy the court that on a winding-up there would bee surplus assets. But there is a special rule that the courts have laid down in exercising their discretion in winding up a company on the petition of a shareholder. The court constantly bears in mind the the internal management of the company us its own concern, and it is much better judge of business prospects of a trading venture than the court can ever hope to be. If, therefore, the majority of the shareholders show confidence in the management of the company and have faiths in its future prospects, the court has rarely interfered."
3. In Pioneer Bank Ltd., In re1 Mr. Justice Macleod stated that a shareholder's petition must be scrutinized much more carefully than a creditor's petition. In re Suburban Hotel Company2 Lord Justice cairns refused to wind up the affairs of the company against the wishes of the majority of shareholders of the company because the business had been carried on at a los and appeared likely t continue as a losing concern. Similarly in In re lowdown Suburban Bank , the majority of the shareholders where opposed to a winding up, and there too the order was refused. It is clear from these decisions that is a well- settled principle that as between shareholders the wishes of he majority shall prevail. "It is very important", said Japes L.J., in In re Langham Skating Rink Co , "that the court should not, unless a very strong case is made, take upon itself to interfere with the domestic forum which has been established for the management of the affairs of a company." There must be strong ground for exercising the power of interference at the instance of a shareholder. The Act creates as between shareholders a domestic tribunal and the court would be slow to withdraw from it the decisions to whether the company's business shall be carried on or the company shall be wound up. In the present cases, the subscribed and paid up capital of the company is Rs. 16,45,4000 and out of this ,shareholders holding share capital to the extent of Rs. 2,43, 210 support the petition while shareholders holding share capital to the extent of Rs. 9,49,050 appose the petition. The rest of the shareholders have not opiated before me but even assuming that they support to petition, thee total sure capital in support of the petition would be Rs. 5,50,950, as against the share capital of Rs. 9,49,050 opposing the petition. it will thus be scene that the majority of the shareholders are against the winding up do the company. They are so the opinion that the continuance of the company is in the best interests of the shareholders and that the company should not be wound up. The Government of Gujarat is the largest single shareholder opposing the petition, it's shareholding being Rs.5,00,000 and the point of view of the Government is succinctly seed out in the written statement filled by Shri S.K. Gangopadhyaya as the Government nominated director on the board of directors of the company. The relevant passage is in paragraph 19 of the written statement and runs as follows:
".......The company is solvent, the machinery is in good condition, the industry has a very good future and the continuance of the company is in the best interest of the company. The wishes of the main bulk of the persons interested in the assets of the company are in favor of continuing the company, the purpose and substratum of the company are both subsisting and live, the statements on which the petition is based are mainly , though not admitted, relate to the internal management or affairs of the company for which the procedure of winding up cannot be legally used.
4. The fact that the majority of the shareholders including an independent shareholder like the Government of Gujarat are against the winding up of the company and desire the company to continue is an important circumstance which must weight with me in deciding whether I should or i should not make a compulsory winding-up order against the company. Of course, if I hold that the substratum of the company is gone, their consideration would bee entirely irrelevant for, in such a case, the majority cannot force the minority to continue the company.
5. Thee grounds on which the winding up of the company is sought by the petitioner can bee broadly divided into five heads:
(1) The affairs of the company are conducted in a manner prejudicial to the interest of the minority shareholders and the personal and private interest of respondent No.2 are advanced law the expense of the company and three minority shareholders.
(2) Two rival groups are fighting amongst each other and there are disputes as to ho constitute the board of directors and who is the chairman of the company and there is thus a complete deadlock.
(3) The company is commercially insolvent and its assets are insufficient to meet its liabilities.
(4) The business of the company is closed from March 31, 1955, and the factory of the company is leased out to Messrs. Commercial Sales Agency since that date.
(5) The substratum of the company is gone.
6. So far as the first two grounds are concerned the learned Advocate-General gave up-in my opinion rightly- the contention the the company should be Would up on the ground that there was oppression of minority shareholders and respondent No.2 and the shareholders supporting him who are in a position to control the affairs of the company had exceeded or abused their power to the prejudice of thee interests of the minority share holders. This ground could not possibly be made good by the learned advocate- General merely by relying on the fact that respondents Nos. 21 and 22, who are the partners on Messrs. Commercial Sales Agency, are the sons of respondent No. 2 or even benamidars of respondent No.2. In order to substantiate the allegation that the lease of the factory to Messrs. Commercial Sales Agency constituted advancement son the personal and private interests of respondent No.2.in disregard of the interest of the minority shareholders, it was necessary for the learned Advocate-General too further and prove that the company could have run the factory and carried on the business of manufacturing hydrogenated vegetable oils, soaps and other allied products and made profit out of the same, but that in order to oblige respondent No2, the companies controlled by respondent No.2 and the majority shareholders supporting him gave a lease of the factory to Messrs. Commercial Sales Agency so that to profit which would have been learned the company might be diverted into the pockets of respondent No.2 or respondents Nos. 21 and 22. This the learned Advocate-General was obviously not in a position to do and he, therefore, rightly did not press this ground founded on oppression of minority shareholders. The learned Advocate-General also rightly did not press the ground based on deadlock for though there might have been a deadlock at the day of the filing surf the petition, it was clear that there was no deadlock at the time of the hearing of the petition and the ground based on deadlock could not, therefore, be pressed into service by the learned Advocate-General on behalf low the petitioner. Whatever may have been the position regarding the financial position of t he company a the date of the filing of the petition, it was cleat from the balance-shares which were produced before me, the at the date of the hearing of the petition, the company was perfectly solvent and there were absolutely no creditors of the company. The third ground based on commercial insolvency also did not, therefor, avail the petitioner. The only two grounds which were really pressed by the learned Advocate-General here the last two grounds and i will now proceed to consider these grounds.
7. The learned Advocate-General contended that the business of the company was closed from March 31, 1955, and that the factory of the company was leased out to Messrs. Commercial Sales Agency since that date and that inn his submission this constituted sufficient ground for winding up the company. Now I do not see how by itself this ground can possibly be a ground for making a composer winding up order against the Company. It is do doubt true that under section 162(iii) of the Indian Companies Act, 19113, suspension of business of company for a whole year is a ground for winding up the company. But in the present cases, I do not find any reliance placed on section 162 (iii) of the London Companies Act, l1913. The only ground on which it has been contended on behalf ofthe petitioner that the company should bee wound up is that it is just land equitable to wind up the company and the fact that the business of the company is closed from March 31, 195,is relied more as a circumstance showing why it is just and equitable that the company should be wound up than as lan independent ground by itself. The learned Advocate- General has not based his case on section 162(iii) of the Indian Companies Act, 1913, and I need not, therefore, consider weather the company has suspended its business for a whole year and is, therefore liable to be wound up. As a matter of fact, on the view I am taking as regards the true construction of the memorandum of association, in the present case, it cannot possible be said that the company is not carrying on any business since March 31, 195, and even if any contention based on section 16 2 (iii) of the Indian Companies Act ,1913, had been urged before me, I would have rejected such contention. I will therefore, now turn to examine the last ground urged by the learned Advocate-General , namely , that the substratum of the company is gone and that it is , therefore, just and equitable to wind up he company and seen how for that ground has been made good by the learned Advocate-General.
8. It is now well settled by authorities that when the substratum of the company is gone, it is just and equitable to wind up the company. It was Lord cairns who first suggested in In re suburban Hotel Co. 1 that if the substratum of the company where gone, that might render it just and equitable to make a compulsory winding up order. In that case the objects of the company were very general: "Rot buy lands within twenty miles of the General Post Office ,to erect and work hotels, etc.," There company had bought lands at Hampstead and erected an hotel; it did not pay, but the majority of the shareholders wished to go on and Lord Cairns held that the court should not interfere. Lord Cairns observed-and it's necessary to set out these observations in order to understand exactly when the substratum of the company can be said to be gone:
"A case might occur," proceeded the learned judge, "where the court would be willing to give under the Act, to minority of shareholders the species of relief that sometimes is given in cases of ordinary partnership where it becomes impossible (I used the term `impossible' in the strict sense of the term) to carry on the business any longer.......if it were shown to the court that the wholes substratum of the partnership, the whole of the business which the company was incorporated to carry on, had become impossible, I apprehend that the court might either under the Act of Parliament, or on general principals, order the company to be wound up."
9. The important words are "the whole of the business which the company was incorporated to carry on, had become impossible". It must be shown that the whole substance or substratum of the venture which the shareholders joined together for 5the purpose of carrying out has become impossible. This ground for winding up depends upon the principle that the shareholders who Subscribe money for one purpose are nor bound to permit it to be used for another purpose but are entitled to say "the undertaking in which we all embarked is roved to be impossible to carry out we decline to enter into any further speculation". Thus in In re Haven Gold Mining Co. 1, the company was formed to acquire and develop a particular property in New Zealand called the Heaven Claim though the memorandum of association contained wide power enabling the company to purchase mines and mineral properties in New Zealand and elsewhere. It was found that the company had no title to the particular property and, in the words of gazelle M.R. had "no reasonable prospect of obtaining thiamine from any one". The court of Appeal held that the substratum had gone and that the company should be wound up The following passage from the head- note in that cases contains a precise and accurate statement of the principle:
"Where the court is satisfied to the subject-matter of the business ....has substantially ceased to exist, it will make an order for winding-up of the company, although the large majority of the shareholders desire to continue to carry on the company."
10. This passage was adopted as a sufficient statement of the principle by Jenkins J. in Re Eastern Telegraph Co. Ltd. 2 and, after quoting their passage, the learned judge added the following explanation:
"That, I take it , means that, if a shareholder has invested his money anteaters of the company on the footing that it is going to carry out some particular object, he cannot be forced against his will by the votes of his fellow shareholders to continue to adventure this money on some quite different project or speculation."
11. The same principle was applied in In Re German Date Coffee Company. 3 where it was found on a true construction of the memorandum of association that the main object of the company was to exploit german patent of making coffee from dates and the patent was never obtained. It was held that the company was formed with the primary object of acquiring and working the particular patent and all the remaining objects where ancillary to this object and consequently the substratum had failed . The subject-matter which the company was formed to exploit was a particular mine in one cases and a particular patent in the other and since the subject-matter never came into existence or ceased to exist, the substratum of the company was deemed to have f ailed. In In re Red Rock Gold Mining Co. Ltd.1, a company had been formed to purchase and work the Red Rock Mine was a failure and that the company must either go into liquidation or employ the unexpanded capital in other sways. At a matting so then shareholders, the majority passed a resolution requesting the direction to find some suitable mode of investing the money. A petition was thereupon filled by a shareholder to wind lope the company and the court held, following Liner Haven Gold Mining Co.2 and In re German Date Coffee Co.3, that the main object for which the company was incorporated was to purchase and work the red Rock Mine and since that object had failed, the substratum of the company must be deemed to be gone and there must be a winding up order. Kay J. thus stated the principle:
"The principle of this court is that, where the association was formed for a particular porpoise, it does not matter that it has large powers in addition to that particular purpose; if that particular purpose fails, any shareholder has a right to say, 'put an end to it, pay me my money.' The history of the principle was considered by the Court of Sessions in Galbhaith v. Merito Sipping Co. and the following passage from the judgment in threat cases contains a cleat and precise enunciation of the principle:
".......The conception which originated from a mere suggestion of Lord Cairns inthe year 1868 that it might be a 'ground for In justice and equity ' if a shareholder or a creditor could demonstrate that the substratum had completed disappeared is by his very words, and by other judges alike, limited to the case where that object or purpose, held to be primary inthe fullest sense, that it not merely first in order of importance, but containing the whole substance or substratum of the venture , has now become an impossible purpose."
12. The main or primary object for which the company is formed may become impossible either by reason of the subject-matter of the company being gone or for any other reason: in either case the substratum of the company would bee deemed to be gone because the shareholders having come together land subscribed money for a particular object, they cannot on the failure of such object be compelled by the votes of their fellow-shareholders two "continue to adventure their money on some quite different project or speculation". It is, however, necessary for the application of the principle that the minor primary object must have become impossible of fulfillment. It is not sufficient that the main or dominant object should have been abandoned. The abandonment object may be treated as one of the circumstances leading up to the commercial impossibility of the venture but it is not sufficient to support a petition for winding up on the ground that the substratum of the company is gone. The intention of the board of directors or shareholders of a company as regards continuance or abandonment of a particular business which is the main or dominant object of the company is entirely irrelevant in considering whether the substratum of the company is gone. What the board of directors or shareholders or a company may have abandoned today, may be resumed by them tomorrow and thought they may have considered at one time that the business should not be continued, they may later on fine that the foundations have charged and that it is profitable to carry on the business and may accordingly resume the business. The question whether or not the substratum of a company is gone cannot be dependent on the intention of the board of directors or shareholders low the company. The following observations of Lord Greens M.R. in Ree Kitson & Co. Ltd.1 may be usefully cited in this connection:
"The judge, subject to one matter which I am about to mention, as I read his judgment, would quite clearly have refused to make a winding up order. Down to this point he did not comment adversely, and it seems tome he had no material for commenting adversely on the question whether there was a real and bona fide intention to re-embark inthe engineering business at the time the matter away before him. Subject again to what I mentioned a moment ago, it is quite cleat he was not prepared to question that, I myself would go further than that, because this question of intention on which counsel for the respondents laid very great streets is, I must confess, on the facts in this case, one which does not impress me. To say that the question whether substratum has not gone can be affected by the intention that happens to exist inthe minds of the board at a given moment appears to me to be going into irrelevant considerations. First of all, the sales of the Kitson business, so far as the board was concerned they thought that there was no chance land that it was not desirable for the company ever to start again into engineering. It certainly is not proved nor was it proved that the shareholders had any such intention; but assume that it was. A little time after wards something might happen to make them changed their minds. They might see a profitable opportunity of using the company's money again inthe engineering business. What has intention to do with it? We are dealing with the question of substratum, and to say that the substratum can exist at one moment and ceases to exist a moment later, or vice versa simply through a change of intention of the board or of the shareholders (I know not which) seems to me to lead into a morass."
13. It is, therefore, clear that in order to bring the case within there principal underlying substratum cases, it is not enough to show that the main or dominant object for which the company is incorporated has been abandoned or that there is no intention on the part of the company to carry lout such object but it must be proved that such object has becomes impossible of fulfillment either by reason of the subject -matter of the company being gone or for any other reason. The requirement of the principle that the main or primary object of the company must have become impossible is emphasized in all the substratum cases and particular reference is to be found in In re Suburban Hotel Company1, where Lord Cairns confined there application of the principle to cases where 'the whole of the business which the company was incorporated to carry on had become impossible." Considerable emphasis was also laid on this requirement in Galbhaith v. Merito Shipping Co.2 In that case the principal abject of the company was ship- owning was impossible and on that ground the petition was dismissed.
14. In every cases, therefore, where this ground is relied the question is what is the main or primary object or purpose for which the company is incorporated and whether that main or primary object or purpose has become impossible. This question must inevitably turn or purpose has becomes impossible. This question must inevitably turn on the construction of the memorandum of association for it is the memorandum of association which specifies the objects which a company is formed to carry can be gathered only from there memorandum of association The difficulty in many cases is o determined which is the main or primary object or purpose or the "substance of the venture ", particularly having regard to the fact that the objects clause of the memorandum is usually drawn in a very wide form. A special of the memorandum is usually drawn in a very wide form. A special (1)(1867) L.R. Ch. App. 737. (2) 1947 S.C. 446.
15. Rule of construction is in some cases applied where the objects of a company are expressed in a series of paragraphs and according to that rule of constructions one or more paragraphs are taken as embodying the main or dominant object of the company, and all other paragraphs are treated as merely ancillary to this main object and as limited and controlled thereby. This rule may by refereed to as the "main objects" rule of construction. The learned Advocate-General, on behalf of the petitioner, relied mainly on this rule of construction and contended that the company was formed with the primary object of carrying on any one or more of the businesses specified in paragraphs I to 6 of. The argument of the learned Advocate- General was that thought paragraph 30 of clause 3 of the memorandum authorized the company to lease the factory, the object contained in that paragraph was not an independent object but was an object ancillary to the main object contained in paragraphs I to 6 and that the power of leasing the factory could, therefore, be exercised only for the purpose of achieving the object note in a manner so as to destroy the main object. The learned Advocate-General contended that leasing of the factory to Messrs. Commercial Sales Agency was an act destructive of the main object of carrying on any one or more of the businesses specified in paragraphs I to 6 of clause 3 of the memorandum and as a result of loosing out the factory to Messrs. Commercial Sales Agency the whole substance or substratum of the venture came to an end and the substratum of thee company was gone. This contention of the learned Advocate-General is, however, untenable and cannot bear examination. This contention is based on the premise that the object of carrying on any one or more of the businesses specified in paragraphs I to 6 of clause 3 of the memorandum is the main object of the company and that the objects set out in the remaining paragraphs are ancillary to this main object and the premise in its turn depends on the application of the main objects rule of rule of construction. In my opinion, however, the main objects rule of construction cannot apply in the present case. It must be remembered that like every rule of construction this rule of construction can be excluded or modified by the contents of the document to be construed, namely, the memorandum, for every rule of construction contains by implication the saving clause "unless a contrary intention appears from the document". Sometimes, as in the prescient case, the memorandum declares thee intention to be that the objects specified in each paragraph of the clause shall, except where otherwise expressed in such paragraph, be in nowise limited or restricted by reference to or inference from the terms of any other paragraph or the name of the company. These words are obviously intended to exclude or modify the main objects rule of construction and the court is bound to give effect to the intention so expressed. It is no doubt true that in Stephens v. Mysore Reefs (Kangundy) Mining Co. Ltd. 1, the court disregarded the presence of such words, but the decision in that cases has been expressly dissented from in a subsequent decision in Anglo- Overseas Agencies Ltd. v. Green 2 and can no longer nee regarded as good law. In thee subsequent decision these words have been construed as excluding thee main objects rule. I am in respectful agreement with thee reasoning of Salmon J. in that decision. The same words, which were considered by Salmon J. as excluding the main objects rule of construction, occur in the prescient case at the end of clause 3 of the memorandum and in my opinion they clearly indicate an intention on the part of the draftsman that the main objects specified in clause 3 of the memorandum should be treated as an independent object for which the company is established. The words "all or any " occurring in the opening part of clause 3 of thee memorandum also emphasize this construction. It cannot, therefore, be said that the object set out in any particular paragraph or paragraphs of clause 3 of the memorandum is the main or primary object or that the other paragraphs must be read as ancillary to such main or primary object seek out in paragraph 30 as for the objects set out in any one or more of paragraphs I to 6. All the objects area independent objects and the company may carry out any one or more primary object to thee exclusion of the rest. There is thus no main or primary object or to put it differently , all the object set out in the various paragraphs of clause 3 of the memorandum are main or primary objects. If, therefore, thee company leased to factory to Messrs. Commercial Sales Agency and such act of leasing is authorized under paragraph 3o of clause 3 of the memorandum, I do not see how it can be contended that the main or dominant object of thee company failed. It may be that by leasing the factory to Messrs. Commercial Sales Agency the company ceased to carry on the business of manufacturing hydrogenated vegetable oils, soaps and other allied products specified in paragraphs I to 3 of clause 3 of there memorandum though this proposition is also not clear and free from doubt and I need not express my opinion on the same. That does not, however, mean that the main or dominant object for which the company was formed became impossible. Thee object seem out in paragraph 3o of clause 3 of the memorandum was as much a main or primary object as the object set out in any one or more of paragraphs 1 to 3 and merely because the company sketched on to the object specified in paragraph 30 from the object specified in any one or more of paragraphs 1to 3, it does not mean that the main or primary object of the company failed. There are various businesses specified in the various paragraphs of clause 3 of the memorandum, which are the objects for which the company is established and it is for the shareholder to decide which out of several businesses authorized by the memorandum, the company should carry on. The shareholders may feel that the business specified in a particular paragraph of clause 3 of the memorandum is not worthwhile carrying on for the time being and they may decide to switch on to another business specified in some other paragraph of clause 3 of the memorandum. This is all that has happened in the present cases. The company felt that having regard to adverse trade concussions and seen internal competition it was not profitable or advisable to continue to run the factory and to carry on the business of manufacturing hydrogenated vegetable oils, soaps and other allied products and the company accordingly decided to give a lease of the factory to Messrs. Commercial Sales Agency. The leasing of the factory to Messrs. Commercial Sales Agency was a business authorize under paragraph 30 of clause 3 of the memorandum and the company thus substituted one form of business for another out of the various forms of business contemplated by the memorandum. This being the position no question of impossibility or failure of the main or dominant object of the company could possibly arise in the present case and the argument of the learned Advocate-General that, as a result of the leasing of the factory to Messrs. Commercial Sales Agency, the main or primary object of the company failed and the substratum of the company must, therefore be deemed to be gone must be rejected.
16. Assuming I am wrong in not applying the main objectors rule of construction and treating the object specified in the various paragraphs of clause 3 of the memorandum as independent objects, even so, the contention of the learned Advocate-General that the substratum of the company is gone cannot succeed. The main or dominant object of the company according to the learns Advocate- Genera was to carry on the business specified in one or more of paragraphs 1 to 6 of clause 3 of the memorandum. The learned Advocate -General urged that the company stoop carrying on the business of manufacturing vegetables oils, soaps and other allied products and gave a leases of the factory to Messrs. Commercial Sales Agency which lease has continued for a period of over five years and in the submission of the learned Advocate- General these facts clearly warranted the inference that the company has abandoned its main or primary object of carrying on the business specified in any one or more of paragraphs 1to 6 of clause 3 of the memorandum, since the leasing of the factory to Messrs. Commercial Sales Agency is inconsistent with the company being able to carry on any such business. The learned Advocate- General contended that since the company has abandoned its main or primary object, the substratum of the company must be deemed to be gone. I am afraid this contention of the learned Advocate- General cannot be accepted as correct and for a very good reason. As I have already pointed out above, in order to make out a cases for winding up on the ground that the substratum of the company is gone, it is not enough for the petitioner to allege that the main or dominant object of the company has been abandoned but the petitioner must go further and who that the main or dominant object of the company has become impossible. The impossibility must be either physical or legal impossible. The impossibility must be either physical or legal impossibility or it may evens amount to reasonable probability of the company not being able to carry out the minor dominant object is not sufficient to support a petition for winding up on the ground that the substratum of the company is gone. The intention of the board of directors or thee shareholders of the company as regards the continuances or discontinuance of the business which constitutes the main or primary object is entirely irrelevant. In all substratum cases the question must always be not whether the boars of directors or the shareholders do not intend ever to carry out the main or dominant object, but whether the main or dominant object has become impossible or there is no reasonable probability of the company being able to carry out the main or dominant object . The question which I must, therefore, ask my self is Has the main or the dominant object of the company -assuming there is one - become impossible or can it be said that there is no reasonable probability of the company being able to carry out such main or dominant object? This question must obviously be answered in the negative for it cannot possibly be said that the main or dominant object of the company has become impossible or that there is no reasonable probability of the company being able to carry out such main or dominant object. Even the argument of the learned Advocate-General did not go so far. All that the learned Advocates-General contended was that on the facts on record it is learn that the company has abandoned its main or primary object of carrying on the business specified in any one or more of paragraphs 1 to 6 of clauses 3 of the memorandum. This contention, even if accepted , cannot for the aforesaid reasons justify the winding up of the company on the ground that the substratum of the company is gone; but, in my opinion, it cannot be accepted as correct. I do not agree with the learned Advocate-General that any inference of abandonment of the main or primary object can be drawn from the facts on record. Of course, when I refer to the main or primary object, I mean the object set out in any one or mores of paragraphs 1 to 6 of the memorandum as contended buy the learned Advocate -General. The facts on record are eloquent and clearly show that the company did not at any times abandon the business of manufacturing vegetable oils, soaps and other allied products which it was carrying on until March 31, 1955, or any of the other business specified in paragraphs 1 to 6 of clause 3of the memorandum. The company started incurring losses from the year 1952 onwards and by the end of 1954, the carried forward loss of the company was Rs. 5,17,824. During the first three months of the year 19j55 also, the company suffered a loss of Rs. 70,800 and the company, therefore,thought that it was not advisable to continues to run the factory and to carry on the business of manufacturing vegetable oils, soaps and other allied products, but that it would be better to give a leases of the factory with a condition that the lessees should run the the factory and carry on the same business so that the business would be preserved and the products of the company would not go out of market and, on the expiration of the leases, the company would not go out of market and, on the expiration of the leases, the company would be able to take over the business and run it, provided the conditions had improvised and it was possible for the company to run the factory and carry on the business. The company had no other alternative. The company could either continue to run the factor an d go on incurring losses which would mean larger carried forward losses year by years or stop running the factory. If the company stopped running the factory , the factory would remain idle and the products of the company would go out of market and this, in its turn, would make it extremely difficult for the company to resume business when the circumstances improved. The best course, therefore, for the company was to give the the factory on lease on condition that the lessee should run the factory and carry on the same business and to earn a certain definite amount by way of rent leases without the business suffering any adverse effects. The company, therefore, gave a lease of the factory to Messrs. Commercial Sales Agency. It is important to note that under the indenture of leases, Messrs. Commercial Sales Agency were under on obligation to run the factory and to carry on the business of manufacturing hydrogenated vegetable oils, soaps and other allied products,nesting the same business which was carried on by the company . Clause 2(b) of the indenture of leases imposed an obligation on Messrs. Commercial Sales Agency to run the factory and to diligently carry on the business of manufacturing vegetable oils, soaps and other allied products and for that purpose to provide the necessary finance. Not only was such an obligation imposed on Messrs. Commercial Sales Agency by clause 2(b), but Messrs. Commercial Sales Agency were prohibited by clause 2(k) from carrying on in the factory any business other than that of manufacturing vegetable oils, soaps and other allied products. Clause 3 required the company to make available to Messrs. Commercial Sales Agency for efficient working of the factory. There was also an obligation on Messrs. Commercial Sales Agency to purchase all the stores, stocks and spare parts belonging to the company. These provisions in the indenture of lease clearly show that the object of the company was that the factory should continue to exist so that on termination of the lease the company could take over the factory and carry on the business without any break or interruption which might ruinously affect the business. Unless the intention of the company was to resume the business on the termination of the lease, there is no reason why any obligation should have been imposed on Messrs. Commercial Sales Agency to run the factory and to carry on the same business. The company was leasing the factory and getting rent for it and it should have been a matter of little concern to the company as to how the factory was used by Messrs. Commercial Sales Agency. It is obvious that the lease was givens because of adverse circumstances and the intention f the company was at no time to abandon the business of running the factory and manufacturing vegetable oils, soaps and other allied products. This becomes all the more apparent when one turns to the explanatory statement attached to the notices convening the 14th annual general meeting of the company to be held on June 7,1958. The explanatory statement was in respect of the resolution for the confirmation of the actin of the board of directors in giving a lease of the factory Messrs. Commercial Sales Agency for a minimum period of six months from April 1,1958, to September 30,1960, with an uptown of renewal for a period of one year from October 1, 1958, to September 30, 1959, and a further option of renewal for a period of one year from October 1, 1958, to September 30, 1960, and contained the following statement:
"Owing to carry over of losses of the previous years and in view of the pending petition to wind up the company, filed by some shareholders s of the company, it was not possible to raised any working funds and, therefore, it was neither practicable nor possible for the company to run the factory. The board of directors, therefore,thought it fit to give the factory on leases for a minimum period of 2 1/2 years and called for tenders by giving due publicity in various newspapers."
17. The company obviously ended working capital for running the factory and for carrying on the business of manufacturing vegetable oils, soaps and other allied products and so long as there was a large carried forward loss and the present petition was pending, it was not possible for the company to raise any funds and the company, therefore, gives a lease of the factory to Messrs. Commercial Sales Agency for a further period of 2 1/2 years, the intention, however, being all throughout that the circumstances permitted. There is one other circumstances which, in my opinion,is conclusive of the matter. Some time in 1959, the company immediately applied to the Bombay State Financial Corporation for a loan of Rs. 7,00,000 for construction and erection of the solvent extraction plant. The Bombay State Financial Corporation, however, turned down the application of the company on the ground that disputes were pending in the High Court, the reference obviously being to the present petition. Now if the company had no intention of carrying on any business specified in one or more of paragraphs 1 to 6 of clause of the memorandum which according to the learned Advocate-General constitutes the main and dominant object of the company, there is no reason why the company should haves obtained a licenses for the putting up of the solvent extrication plant or should haves applied for a loan of Rs. 7,00,000 from the Bombay State Financial Corporation. This circumstance clearly shows that the intention of the company was not to go on giving leases of the factory to Messrs. Commercial Sales Agency kin definitely and merely earning rent from such leases, but to carry on the business which, in the submission of the learned Advocate- General, constitutes the main or primary object of the company. The company was merely waiting for the time when its financial position would improve and it would be in a position to run the factory. Even the reasons given by the shareholder,B. B. Sanghvi, at the general meeting of the shareholders of the company held on October 8,1960, which ultimately resulted in reducing the period of the lease from five years to one year with an option of renewal for a further period of one year, would support this in reference which I am inclined to draw as regards the intention of the company vis-s-vis the factory and the business of manufacture carried in the factory. I am, therefore, of the opinion that the company did not abandon the business of manufacturing vegetable soaps and other allied products which it was carrying on till March 31, 1955, or any of the other businesses specified in paragraphs 1 to 6 of clause 3 of the memorandum. The present contention of the learned Advocate - General must, therefore,fail.
18. The last argument advanced by the learned Advocate-General was that there was p reasonable hope that the object of trading at a profit with a view to which the company was formed could be attained and that the substratum of the company must therefore be deemed to be gone. The learned Advocate-General pointed out to me that the gross income of the company was Rs. 1,00,000 derived from rent of the factory recovered from Messrs. Commercial Sales Agency. Out of this gross income an average expenditure of Rs. 20,000 would have to be met while the dividend on preference shares would come to about Rs. 30,000. This would leave only a sum of Rs.50,000 out of the gross income which would be hardly sufficient to provide for depreciation. If allowance for depreciation was made,as it must be in conformity with the principles of accountancy, nothing should be left out of which any Advocate -General contended that the company would thus continues to exist for the benefit of Messrs. Commercial Sales Agency and the holders of preferences shares. I am afraid I cannot accept this contention. The rent of Rs. 1,00,000 per year is not going to be a permanent feature of the company. The present lease in favour of Messrs. Commercial State Agency would end latest by September 30, 1962. I do not know what the position would be then, but I cannot proceed on the the assumption that the company would continue to gives a lease of the assumption that the company would continue to give a lease of the factory to Messrs. Commercial Sales Agency at the rent of Rs. 1,00,000. As I have already pointed out above and carrying that the company will it self start running the factory an carrying on the manufacture of vegetable oils, soaps and other allied products, provided of course the financial position of the company is such that the company is in a position to do so. Again, apart from this consideration,the question whether the lease of the factory to Messrs. Commercial Sales Agency at the rent of Rs. 1,00,000 per year is a desirable thing or not, is a question which relates to the internal management of the affirm of the company. If the result of giving the lease to Messrs. Commercial Sales Agency is that no amount is left for declaration of dividend on ordinary shares,it is a matter of the shareholders and not for the court. The lease of the factory to Messrs. Commercial Sales Agency may be a bad transaction for the company to enter into a business point of view, but as observed by Lord Green M.R.in Re Kitson & Co. Ltd.1 "that is the last sort of thing that this court is concerned with in winding up cases." It is not for the court to say whether the lease should or should not have been entered into or whether the lease is a good transaction or a bad transaction from the point of view of the ordinary shareholders That is a business matter for the shareholders to decide and they have so decided. I cannot be called upon by the learned Advocate-General to make a compulsory winding up order on the ground that the leases is such a transaction that no dividend would possibly come to the ordinary shareholders. A consideration such as this can never be take in to account by the court in deciding whether there the company should be wound up. But apart from this, there so a still more fundamental objection to this ground urged by the learned Advocate-General. It is only when there is no reasonable hope that the object of trading at a profit with a view to which the company is formed would be attained that it can be said that the substratum of the company is gone. In the present case the company is making a profit though it be small and not sufficient for declaration of dividend on ordinary shares. Can it be s aid that the object of trading at a profit is not attained in the present case? The company is indubitably trading at a profit even under the lace given to Messrs. Commercial Sales Agency. On the expiration of the lease, or at any rate in not too distant future, there is every reasonable hope that the company will start running the factory and carrying on the business of manufacture and there is no material put on the basis of which it can be said that there is reasonable hope that the company would be able to trade at a profit when it starts running the factor and carrying on the business of manufacture. You put it briefly, the company is at present trading at a profit and there is every reasonably hope that the company will continue to trade at a profit . This ground urged by the learned Advocate-General must, therefore, fail.
19. In this view of the matter I must reach the conclusion that the substratum of the company is not gone and that no ground has been made out why it is just and equitables that that the company should be wound up. The result is that petition will be dismissed. Thee petitioner will pay the costs of the company and the other for the shareholder opposing the petition. There will be two sets of costs, one for the company and the others for the shareholders opposing the petition. There will be no order as to costs as regards the shareholders supporting the petition.
20. Petition dismissed.