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NC: 2024:KHC:12960 COP No. 149 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ COMPANY PETITION NO. 149 OF 2011 BETWEEN:
KIRTI D SHAH S/O DHANJI DHARAMSHI AGED ABOUT 56 YEARS R/AT NO. NO.420, 10TH CROSS,17TH MAIN, J P NAGAR, II PHASE BANGALORE-560078
TARUN D DHARAMSHI S/O DHANJI DHARAMSHI AGED ABOUT 52 YEARS R/AT NO.601, 52, SWASTIK SOCIETY JOY APARTMENT, 4TH ROAD, JVPD SCHEME JUHU, VILLE PARLE (W), MUMBAI-400056
KALPANA T DHARAMSHI W/O TARUN D DHARMSHI AGED ABOUT 48 YEARS R/AT NO.601, 52, SWASTIK SOCIETY JOY APARTMENT, 4TH ROAD, JVPD SCHEME JUHU, VILLE PARLE (W), MUMBAI-400056
VIREN K DHARAMSHI S/O KIRTI SHAH AGED ABOUT 32 YEARS R/AT NO.420, 10TH CROSS, 17TH MAIN, J P NAGAR II PHASE BANGALORE-560078
Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA
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NC: 2024:KHC:12960 COP No. 149 of 2011
JYOTI K DHARAMSHI D/O KIRTI SHAH AGED ABOUT 56 YEARS R/AT NO.420, 10TH CROSS, 17TH MAIN, J P NAGAR II PHASE BANGALORE-560078
JATIN TARUN DHARAMSHI S/O TARUN DHARAMSHI AGED ABOUT 28 YEARS R/AT NO.601, 52, SWASTIK SOCIETY JOY APRTMENT, 4TH ROAD, JVPD SCHEME, JUHU, VILLE PARLE (W) MUMBAI-400056
…PETITIONERS (BY SMT. NIYATHI.M., ADVOCATE FOR SRI. UDAY SHANKAR.,ADVOCATE)
AND:
M/S DELUXE ROADLINES PRIVATE LTD A COMPANY REGISTERED UNDER COMPANIES ACT AND HAVING ITS REGISTERED OFFICE AT NO.79, 4TH CROSS, NARASHIMARAJA ROAD (KUMBARGUDI ROAD), BANGALORE REP BY ITS CHAIRMAN MR KHUSHALCHAND D SHAH
…RESPONDENT (BY SRI. M.R. NAYAYAN., ADVOCATE; SRI. JAGADEESH GOUD PATIL., ADVOCATE FOR OL)
THIS COMPANY PETITION IS FILED FOR WINDING UP UNDER SECTION 433(f) AND SECTION 439 OF THE COMPANIES ACT, 1956 PRAYING TO WIND UP THE RESPONDENT COMPANY UNDER SECTION 433(f) OF THE COMPANIES ACT, 1956 AND ETC.
THIS COMPANY PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:12960 COP No. 149 of 2011
ORDER
The petitioners are before this Court seeking for the following reliefs: i. To wind up the Respondent Company under section 433(f) of the Companies Act, 1956;
ii. To appoint the Official Liquidator, High Court of Karnataka, a Liquidator of the Respondent Company, for all its assets, properties bank accounts and book debts with necessary powers under the provisions of the Companies Act, 1956;
iii. To grant other relief as this Hon’ble Court may deem fit in the interest of justice and equity.
Initially when the petition was filed way back in the year 2011, it was contended by the petitioners that the company viz., M/s.Deluxe Roadlines Private Limited was promoted by three families viz., family of Mr.Khushalchand D.Shah, Mr.Kirti D.Shah and Mr.Tarun D.Dharamshi and each of them were allotted shares in such a manner that they had virtually equal shareholding inasmuch as Mr.Kushalchand D.Shah’s family was allotted 34.35% Mr.Kirti D.Shah’s family was allotted 34.28% and
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NC: 2024:KHC:12960 COP No. 149 of 2011
Mr.Tarun D.Dharamshi’s family was allotted 31.28% shares.
From and among the said families, Mr.Kushalchand D.Shah being the eldest was appointed as a Chairman and Managing Director of the Company. The business of the Company went on for some time. However, there were dispute between the said promoters and it is in that background that the present petition has been filed and several allegations had been made by the petitioners against Mr.Kushalchand D.Shah on the ground that he was in-charge of the affairs of the Company, he has not carried out the affairs of the Company in a proper and required manner. There being proceedings initiated by the Income Tax Department as also various other departments and Banks as regards assets of the properties and seizure thereof under SARFAESI Act, it is contended that it is just and equitable for the company to be wound up.
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NC: 2024:KHC:12960 COP No. 149 of 2011
A notice having been issued in that regard not having favourably answered and/or complied with, the petitioners are before this Court seeking for the aforesaid reliefs.
Smt.Niyathi M., learned counsel for the petitioners reiterates the aforesaid submissions and states that there is a deadlock in the management of the Company, proceedings were also filed before the NCLT, there is no possibility of the promoters working together and as of now there is no business which is being carried out by the said company and as such, the company is required to be wound up.
Sri.M.R.Narayan, learned counsel for the respondent submits that there are no assets and liabilities of the company and there is nothing which will be achieved by winding up of the company. His submission is also that two groups of families who have filed the above petition being the majority shareholders to an
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NC: 2024:KHC:12960 COP No. 149 of 2011
extent of 65.52% and Mr.Kushalchand D.Shah and his family owning only 34.48%, a majority shareholder cannot maintain the present petition. On a repeated enquiry as to whether he supports the winding up of the company or opposes it, he submits that there is no purpose served by winding up of the company. There is no categorical statement made as to whether he supports or opposes the winding up of the company.
Having heard both the counsels, it is categorically seen and established that there is a deadlock between the shareholders. The petitioners owning 65.52% and Mr.Kushalchand D.Shah’s family owning 34.48%, neither of the groups can call for an extraordinary general meeting which would require 76% of the shareholders to be present and voting in one block. The distribution of the shareholding is such that no special resolution can be passed in terms of Companies Act which requires 76% voting
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NC: 2024:KHC:12960 COP No. 149 of 2011
on one side. In that background, the petitioners would be unable to seek for voluntary winding up of the company and there being a deadlock, the petitioners have approached this Court seeking intervention of this Court by exercising its powers under Section 433 (f) of the Companies Act, 1956 directing for winding up of the Company.
Though the learned counsel for respondent submits that there are no assets or liabilities of the company and no purpose would be served, I am of the considered opinion that the Company cannot continue to exist without a closure being brought about to its existence in a recognized manner under law.
Merely because the parties who were shareholders and who had conducted their business have left the company in lurch it would not be permissible for the said situation to continue. The Official Liquidator having been appointed as a Provisional Liquidator was also unable to take
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NC: 2024:KHC:12960 COP No. 149 of 2011
possession of the assets of the company since he did not find any. In that view of the matter, it is again clear that this petition which is pending from the year 2011 would have to be brought to its logical conclusion and the same would have to be done only by winding up of the company in terms of Section 433(f) of the Companies Act, 1956 on account of it is just and equitable to be so wound up. Hence, I pass the following:
ORDER i) The Company Petition is allowed.
ii) M/s.Delux Roadlines Private Limited bearing Registration No.20416 registered with the Registrar of Companies, Karnataka Bangalore is directed to be wound up in terms of Section 433(f) of the Companies Act, 1956.
iii) The Official Liquidator is appointed as a liquidator of the Company being authorized to seize and take possession of all assets and liabilities of the company, call for and receive all claims of the company.
iv) The petitioners shall deposit an amount of Rs.1,00,000/- within a period of three weeks from the date of receipt of copy of this order for
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NC: 2024:KHC:12960 COP No. 149 of 2011
the Official Liquidator to bear expenses of the liquidation proceedings.
v) Needless to say in terms of Section 454 of the Companies Act, the erstwhile Director shall file the Statement of Affairs within 21 days from today.
vi) The petitioners to take out a publication of winding up of a company within 14 days from today in terms of Rule 113 of the Companies (Winding Up) Rules, 2020. A copy of this order shall be forwarded to the Registrar of Companies and the Regional Director.
Sd/- JUDGE
PRS List No.: 1 Sl No.: 37