JUDGMENT A.K. Banerji, J.
1. The petitioner, Antariksh Credit and Commercial Limited, having its registered office at Fatehpur, has filed this petition under Section 433(a) of the Act on the basis of a special resolution passed by its shareholders and the board of directors for winding-up of the said company on the ground that the company has become heavily indebted and its business has been seriously affected resulting in closure of its office and it has become impossible to run the company, consequently, the same be wound up.
2. On March 4, 1998, the court has issued notice to the Registrar of Companies and to the Central Government. In response thereto the official liquidator has filed a counter-affidavit opposing the prayer made in this petition. It has, inter alia, been stated therein that the directors of the company had defrauded the poor depositors and have, thereafter, brought this mala fide petition to save their skin and to avoid criminal and civil proceedings against them. Learned counsel for the petitioner has, however, submitted that the petitioner-company is insolvent and is unable to pay its debts, it has closed down its offices and its business is at a stand still. Further, while denying the allegations regarding fraud and cheating, learned counsel has invited the attention of the court to certain decisions1 of the Bombay High Court in [1995] 22 Comp Cas 478 and has stated that whether the financial position was brought about by mismanagement or the motive in seeking winding up and whether the substratum of the company has gone, are not relevant. The consideration should be whether it would be in the public interest to wind up the company under Section 433(a) of the Act. Having heard R. P. Agarwal, learned counsel for the petitioner and the official liquidator, this court, vide order dated November 10, 1998, had prima facie found that the case for admitting the petition and for advertising the same under Rule 24 of the Companies (Court) Rules, 1959, was made out. Consequently, it was ordered that the petitioner shall take steps under Rule 24 of the Companies (Court) Rules and a date shall be fixed for hearing in this case.
3. The office report shows that the necessary steps under Rule 24 have been taken by the petitioner and the petition has been advertised. I have heard R. P. Agarwal, learned counsel for the applicant and the official liquidator. As already noticed above, the petition has been filed under Section 433(a) of the Act that the petitioner-company has closed its business and it is heavily indebted and further there is no prospect of the company being revived. This fact has not been seriously disputed in the counter-affidavit filed by the official liquidator. As already noticed above, the Bombay High Court has taken the view that the consideration in such cases is whether it would be in the public interest to wind up the company under Section 433 of the Act. From the averments made in the petition which have not been controverted this court is of the view that a case for winding up of the company is made out.
4. It is, however, made clear that the fact the company is being wound up and the official liquidator appointed will not absolve the ex-directors of the company of their legal responsibility neither will this order stand in the way of any penal action taken of proposed to be taken against the ex-directors of the company or any other proceedings initiated before any court, forum or authority, by the creditors of the company or any members of the public. The official liquidator shall not be held responsible for any action or misfeasence by the ex-directors or responsible for any amount due to any of the creditors of the respondent-company before the assets are sold and claims are invited by the official liquidator after obtaining necessary orders from this court.
5. Consequently, this petition is allowed. The company, Antariksh Credit and Commercial Ltd., having its registered office at Khambapur Road, Near Joniha Bus Stand, Fatehpur, is ordered to be wound up and the official liquidator, High Court, is appointed the liquidator. The petitioner is directed to take steps in accordance with Rule 113 of the Companies (Court) Rules, 1959. The office will take necessary steps in accordance with the Companies (Court) Rules.