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(g) The petition for winding up is malafide to enable the petitioner to conduct competing business in breach of negative convenants of joint venture agreements.

9. Mr.Shyam Divan, the learned senior counsel for the respondent, on the other hand, supported the order of the learned Company Judge and submitted that prima facie consideration of the matter by the learned Single Judge needs no interference. He would submit that the petition to wind up the company has been filed on just and equitable grounds in two capacities i.e. as a 'creditor' under Section 439(1)(b) and as a 'contributory' under Section 439(1)(c) of the Companies Act. Mr.Shyam Divan submittted that Section 428 defines'contributory' and the petitioner falls within the ambit of the definition of the contributory. He invited our attention to the following facts: that the Capital Controls (Delaware) Company Inc. is a part of Severn Trent Group of Companies; that the Capital Controls (Delaware) Company Inc. is the registered and beneficiary holder of 3,75,000 equity share capital of the company, that the company was incorporated in the implementation of the joint venture agreement dated 16th November 1995; that Chloro Controls (India) Private Limited and Capital Controls (Delaware) Company Inc. are joint venture partners in the joint venture company; that the purpose of formation of the company was to fuse and pool together the resources, technology and business of Seven Trent and the Kocha family; that the 50% shareholding of the company is held by Severn Trent through Capital Controls (Delaware) Company Inc. and the balance shareholding of 50% is held by Chloro Controls (India) Private Limited; that before and after the merger of Capital Controls (Delaware) Company Inc. into the petitioner, the directors belonging to Severn Trent have been attending the Board meetings of the company and referred to as Severn Trent directors and not as directors nominated by Capital Controls (Delaware) Company Inc., and that the company has projected on its letterheads that it is a part of Seven Trend Group. The learned senior counsel submitted that from these facts, it would be apparent that the petitioner has right to maintain the petition. He submitted that Capital Controls (Delaware) Company Inc. has merged with and into the petitioner and that the petitioner has stepped into the shoes of Capital Controls (Delaware) Inc. The learned senior counsel submitted that the petitioner is the holder of shares which are fully paid up and as a holder of shares, even if the petitioner is not a member, it has locus standi to maintain the petition for winding up. Mr.Shyam Divan would submit that in order to be considered a contributory, it is not necessary that the petitioner's name should appear on the Register of Members of the company. He also contended that the petitioner's entitlement to shares does not arise from a transfer in terms of Section 108 of the Companies Act, 1956. In contradistinction to a 'transfer' in the present case, the situation is akin to the legal representative of the dead natural person being recognized by the company and since Capital Controls (Delaware) Inc. has ceased to exist as an entity and the petitioner is the successor entity, it is entitled to maintain the company petition for winding up. Mr.Divan submitted that corporate veil can always be lifted by the Court in appropriate situation and in this case it was clear that Capital Controls (Delaware) Company Inc. was exactly the same as the petitioner inasmuch as it represented the Severn Trent Group. He would submit that the petitioner also fulfils the requirement of Section 439(4)(b) and the petitioner ought to be considered as a successor of the allottee and the party on whom the shares have devolved and in that situation, the requirement of holding the shares for minimum period would not apply.

(b) the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months immediately before the commencement of the winding up, or have devolved on him through the death of a former holder.

(5) Except in the case where he is authorised in pursuance of clause (f) of sub-section (1), the Registrar shall be entitled to present a petition for winding up a company only on the grounds specified in clauses (b), (c), (d), (e) and (f) of section 433;

(8) Before a petition for winding up a company presented by a contingent or prospective creditor is admitted, the leave of the Court shall be obtained for the admission of the petition and such leave shall not be granted (a) unless, in the opinion of the Court, there is a prima facie case for winding up the company; and (b) until such security for costs has been given as the Court thinks reasonable.

23. Unless the petitioner falls in any of the categories enumerated in clauses (a) to (f) of Section 439(1), the petition for winding up shall not be maintainable. Before the learned Company Judge in response to the objection raised by the present appellants that the petition for winding up was not maintainable, on behalf of the petitioner, it was argued that the petitioner is the contributory and/or shareholder of the company and covered under Section 439(1)(c) and therefore, the company petition is maintainable. Alternatively, it was argued that the original shareholder viz., Capital Controls (Delaware) Company Inc. having ceased to exist by virtue of amalgamation amounts to death of the company and, thus, the shares have devolved on the petitioner by operation of law.

35. The petitioner admittedly is not the holder of shares having those shares registered in its name on the register of the company.

36. The learned Company Judge applied the expression, "or have devolved on him through the death of former holder" on the analogy that upon merger/amalgamation, Capital Controls (Delaware) Company, Inc. has met its death and the shares held by the said company are devolved on the petitioner by operation of law.

37. We are afraid, the analogy drawn by the learned company Judge is wholly fallacious. The category, "or have devolved on him through the death of former holder" is applicable only to personal representative of a person holding shares in the company in his individual capacity. The said expression applies to devolution of rights on the death of natural person and has no application to a corporate entity or the juristic person. The submission of Mr.Shyam Divan that these words could also be applied to the company which has ceased to exist like the Courts have held that the corporate entity was liable to be contempt jurisdiction of the Court does not appeal us. If we accept the reasoning of the learned Company Judge and the submission of the learned senior counsel for the petitioner, it would be tampering with the plain language used in the last category of clause (b) of Sub-section (4) of Section 439 which we cannot do.