IN THE HIGH COURT OF JUDICATURE AT PATNA COM PET No.8 of 2005 RAM NIWAS AGRAWAL & ORS Versus J.M.G.STEEL PRIVATE LTD ----------- 50. 08.04.2010 The company petition was filed by seven petitioners being shareholders of the company, J.M.G. Steel Pvt. Ltd. for its winding up. Subsequently, petitioners Nos. 5 to 7 filed separate Vakalatnama and tried to make out a separate case against the company. On 13.8.2009 this Court heard learned counsel for the petitioners Nos. 1 to 4 on the question of winding up. Since learned counsel for the petitioners Nos. 5 to 7 was not present in Court on that date the matter was adjourned to 27.8.2009. On 27.8.2009 an interlocutory application (Flag ‘12’) for permission to withdraw the petition was filed on behalf of the petitioners Nos. 1 to 4. The said application was filed in Court and thus not numbered but subsequently on discovery of the said fact it was sent to the registry and registered as I.A.No. 3344 of 2010. It is stated in the said application that in spite of the fact that on the date of winding up the petitioners were majority shareholders no resolution of the shareholders was passed and 2 enclosed with the petition and the petition has been filed under Section 433(e) & (b)/39 (1)(C) of the Companies Act, 1956. It is further stated that having considered the matter and as advised the petitioners Nos. 1 to 4 want to withdraw the application with a liberty to move this Court and/or to seek alternative remedy by filing an appropriate application in future, if so required. The application was pressed by learned counsel for the petitioners Nos. 1 to 4, but learned counsel for the petitioners Nos. 5 to 7 prayed for an adjournment which was granted and the matter was fixed for 3.9.2009. On 7.10.2009 it appears that a fresh Vakalatnama with no objection executed on 4.9.2009 and accepted on the same date was filed on behalf of the petitioners Nos. 5 to 7 and on prayer made the matter was fixed for 8th October, 2009. On that date Mr.Chakradhari Sharan Singh, Advocate appeared along with Mr.Anil Kumar Verma, Advocate who had accepted the fresh Vakalatnama along with another Advocate Mr. Nawal Kishore Prasad No.1 executed by petitioners Nos. 5 to 7, and prayed for an adjournment so that the question of withdrawal on behalf of the petitioners Nos. 5 to 7 may also be considered. 3 On 29.10.2009 when the matter was again taken up, Mr.Anil Kumar Verma, Advocate appeared and prayed for further adjournment for placing certain materials on the record and the matter was adjourned to 19.11.2009. On 3.12.2009 the matter had to be again adjourned on the prayer of learned counsel for the petitioners No. 5 to 7. Again on 11.12.2009 the same prayer for adjournment was made and this Court observed that again learned counsel for the petitioners Nos. 5 to 7 prays for a further adjournment instead of pressing ahead with the matter and despite repeated adjournments learned counsel has not yet come forward with a clear stand and as a last indulgence the matter was adjourned to 17th December, 2009. On 17.12.2009 learned counsel for the petitioners Nos. 5 to 7 submitted that he had filed I.A.7316 of 2009 being an application under Order 1 Rule 10(2) CPC, 1908 seeking addition of certain party who, it was alleged, had purchased certain lands of the company from petitioner No.4. On a query from the Court as to how such matters can be taken into consideration by a Company Court unless a winding up order is passed, learned counsel as also the petitioner 4 No.5, who was present in Court, prayed for some time so that they may engage a senior counsel in the matter to address the Court. The matter was directed to be put up on 7th January, 2010. On 7.1.2010 Mr.K.D.Chatterji, Advocate appeared for the petitioners Nos. 5 to 7 along with the counsel on record and prayed for an adjournment to enable him to get ready in the matter and argue the case and the matter was adjourned to 21.1.2010. On 21.1.2010 Mr.K.D.Chatterji, learned counsel for the petitioners Nos. 5 to 7 submitted that after going through the records of the case, he needs to consider the matter further in the interest of his client with whom he has had some preliminary discussions only as to whether an alternative remedy under Sections 397 and 398 of the Companies Act may not be more appropriate for them or any other remedy and on his prayer the matter was adjourned to 28th January, 2010. On 28.1.2010 Mr.K.D.Chatterji, learned counsel appearing for the petitioners Nos. 5 to 7 submitted that after considering the matter and discussing the same with the said petitioners they had decided to pursue the alternative remedy subject to their right to move a company petition for winding up in future, for which purpose he 5 stated that he would be filing a petition within a week from that date. The matter was again directed to be put up on 4th February, 2010. Thereafter the matter was again taken up on 26th February, 2010. On which date no one appeared for petitioners Nos. 5 to 7 and Mr.A.K.Verma, learned junior counsel to Mr.K.D.Chatterji submitted that his senior had already drafted the petition for the said purpose and handed over to petitioners Nos. 5 to 7 but he had no information whether the same had been filed or not. The matter was again directed to be listed on 5th March, 2010. On 5.3.2010 Mr.Nawal Kishore Prasad No.1, Advocate on record for the petitioners Nos. 5 to 7 stated that the petition for withdrawal on the instruction of the petitioners Nos. 5 to 7 had already been prepared and the same was only required to be affidavited, but his clients had failed to contact him and, accordingly, he prayed for some time. As a last indulgence the matter was directed to be put up on 18th March, 2010. Again on 1.4.2010 no one appeared for the petitioners Nos. 5 to 7 and the matter was directed to be listed on the next day, i.e., on 2.4.2010. On 2.4.2010 no one appeared for the 6 petitioners Nos. 5 to 7 and the matter was directed to be listed on 8th April, 2010. Today, when the matter is taken up despite repeated calls, again no one appears for the petitioners Nos. 5 to 7. Mr.R.A.Singh, learned counsel for the petitioners Nos. 1 to 4 as also Mr.Anupanand Jha, learned counsel for the respondent Company J.M.G. Steel Private Ltd. are present. Mr.R.A.Singh, learned counsel appearing for the petitioners Nos. 1 to 4 presses I.A. No.3344 of 2010 stating that the matter should not be allowed to linger because of the gross laches of petitioners Nos. 5 to 7 in not taking any appropriate step in the matter despite repeated change of counsels and various submissions made before this Court from time to time including that they would also be filing a similar interlocutory application for withdrawing the petition, but the same has not been done. It is submitted that because of their said stand I.A. No. 3344 of 2010 on behalf of petitioners Nos. 1 to 4 has also not been disposed of. In view of the aforesaid facts and circumstances and upon considering the submission of learned counsel for the petitioners Nos. 1 to 7 4, I.A.No. 3344 of 2010 is allowed and the company petition on behalf of petitioners Nos. 1 to 4 is permitted to be withdrawn with liberty to move this Court and/or to seek alternative remedy by filing appropriate application in future if so required for the redressal of their grievances. On a consideration of the conduct of the petitioners Nos. 5 to 7, as elaborated in detail above, this Court is of the view that they have no intention to pursue the present petition. The company petition, so far as they are concerned, is also dismissed. (Ramesh Kumar Datta,J.) spal/