((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.352 OF 1996 Raksha Kirit Gosher Petitioner versus Woodlands Garden Cafe & others Respondents P.K.Samdani, Sr.Counsel with Darshan Mehta i/by Dhruve Liladhar & Co. for petitioner. Ms.Mirashi i/by Shah & Sanghvi for respondent no.9. Laxmi Murli for respondents 2 to 5. S.Ramakant, Deputy Official Liquidator present. CORAM : A.M.KHANWILKAR, J. DATE : 09th January 2008 PC : 1. This petition is filed under sections 582 and 583 of the Companies Act (hereinafter referred to as "the Act" for the sake of brevity). It is not in dispute that the respondent at the relevant time was a partnership firm consisting of seven members. By the very definition of Section 582 of the Act such a firm will have to be recognized as unregistered company. If it is an unregistered company, the regime of Part-X of the ((-2-)) MST Act would be applicable to such company to initiate an action of winding-up within the meaning of Section 583 of the Act. . The petitioner, who was admittedly admitted as one of the partners of the respondent firm, gave notice of dissolution on 12th June 1996. After giving such notice of legal dissolution, the petitioner has taken recourse to present action which is instituted in this Court on 4th July 1996. In this petition the petitioner has invoked two grounds for winding-up of the unregistered company. The first ground is with reference to ground available under clause (a) of sub section (4) of section 583 of the Act. Second ground is in relation to clause (c) of sub section (4) of Section 583 of the Act. 2. The respondent though served, has not bothered to file any reply affidavit to this petition. Indeed, the counsel for the respondent would contend that one affidavit has already been filed in this Court on behalf of respondent, however, that affidavit is in relation to Company Application No.489 of 1996. 3. The first question that I propose to address is whether the ground under clause (a) of sub ((-3-)) MST section (4) of section 583 of the Act has been made out? The fact that the petitioner issued notice through advocate on 12th June 1996, is not in dispute. A copy of the said notice is annexed as Exhibit-D to the petition. In fact, the said notice was duly served on the respondents is also not in dispute. The notice clearly spells out the intention of the petitioner whereby he has called upon the dissolution of the firm. As one of the partner has expressed his intention for dissolution of the firm and the firm being a partnership firm at will, the said notice having been served, it necessarily follows that the firm stands dissolved with effect from 15th June 1996. The notice of dissolution has not been challenged by the respondent before any Court of competent jurisdiction. In that sense, the ground available under section 583(4)(a) has been established by the petitioner and for which reason this Court will have no option but to accede to the prayer for winding-up of respondent company. 4. The petitioner has also invoked ground under section 583(4)(c) of the Act. According to the petitioner, it is just and equitable that the respondent unregistered company should be ((-4-)) MST wound-up. However, as the petitioner has already made out ground for winding-up of the respondent company under section 583(4)(a), it is not necessary to burden this judgement with contentious issues that may arise for consideration with regard to ground under section 583(4)(c) of the Act. 5. Insofar as ground under section 483(4)(a) is concerned, the counsel for the respondent would contend that the present petition is not maintainable. To buttress this submission, reliance was placed on decision of Apex court in the case of Vasantrao and another Vs. Shyamrao and others reported in AIR-1977-SC-2021. That authority, however, is of no avail to the respondents. In that case, the question considered by the Apex Court was whether in view of the remedy provided under Part-X of the Act, the remedy for dissolution of the partnership firm under the provisions of Partnership Act is affected or otherwise. The observations made by the Apex Court in the context of that issue will be of no available to the respondents. There is nothing in this judgement which would even remotely suggest that the remedy under Part-X of the Act is not available to a partnership firm ((-5-)) MST having more than seven members covered by section 582(b) of the Act, being an unregistered company though. 6. There is one more aspect which needs to be highlighted in this judgement. It is not in dispute that the parties had entered into consent terms on 27th August 2003. It was a self operative arrangement arrived at between petitioner and respondents 2 to 5 whereunder in the event of default, the Provisional Official Liquidator would stand appointed in respect of Wooden Garden Cafe together with all its assets, properties including those properties described in Exhibit-F to the petition as also its business and affairs and books of accounts, papers, deeds, documents, vouchers and files belonging to the respondent with all powers under the provisions of Companies Act, 1956. That has happened in terms of order dated 3rd February 2005. It will be useful to advert to paragraphs 6 and 7 of the said order which restates the position about such arrangement directed by the Court. Indeed, the said order was modified in terms of order dated 30th June 2005. However, the direction of appointing Official Liquidator as Provisional Liquidator in respect of respondent company ((-6-)) MST remained unaltered. Indeed, the business which was carried out by the firm has been continued under the order of the Court on terms specified in order dated 30th June 2005 and orders passed by the Court thereafter from time to time. The fact remains that the dissolution notice has come into force and the firm, therefore, stands dissolved with effect from 15th June 1996. 7. In the circumstances, the petition deserves to be allowed in terms of prayer clauses (a) and (b) which reads thus :- "(a) that Respondent No.1 viz. Messrs Woodlands Garden Cafe having its office at Nalanda Shopping Centre, Vaikunthlal Mehta Marg, Juhu, Mumbai 400 056 be ordered to be wound-up by and under the Orders and directions of this Hon’ble Court; (b) that the Official Liquidator, High Court, Bombay be appointed as the Liquidator of Respondent No.1 viz. Messrs Woodlands Garden Cafe, together with all its assets and properties and be directed to forthwith take charge and possession of all the assets and properties of Respondent No.1 including those described in Exhibits ‘F’ as also books of account, papers, deeds, documents, vouchers, files, belonging to Respondent No.1 with all powers under the provisions of the Companies Act, 1956." 8. It is made clear that the Provisional Official Liquidator already appointed by this Court will now act as Official Liquidator in ((-7-)) MST respect of the respondent company. Ordered accordingly. (A.M.KHANWILKAR, J.)