1 IN THE HIGH COURT OF BOMBAY AT GOA COMPANY APPEAL NO. 4/2009 Trudy Trindade, Allied Bungalow, St. John's Road, Bandra (W), Mumbai 400 050 ....... Appellant. Versus. 1. La-Joy Hotels Pvt. Ltd., P.O. Porvorim, Socorro, Bardez, Goa 403 501. 2. Lazaro De Souza, P.O. Porvorim, Socorro, Bardez, Goa 403 501. 3. Smt. Joyce Arora Santhacruz Pinto De Souza, P.O. Porvorim, Socorro, Bardez, Goa 403 501. 4. Anthony Trindade, Allied Bungalow, St. John's Road, Bandra (W), Mumbai 400 050 ....... Respondents. Mr. Shivan Dessai, Advocate for the appellant. CORAM : B.P. DHARMADHIKARI & U.D. SALVI, JJ. Date of reserving Order : 22.4.2009 Date of pronouncing Order : 29th April, 2009. 2 O R D E R : (Per B.P. DHARMADHIKARI, J.) By this appeal filed under Section 483 of the Companies Act, 1956 (“Act” for short), the petitioner in company Petition No.8-T of 2004 filed before the Company Judge seeking an order of winding up under Section 433(f) of the Act, has challenged the order dated 12.7.2007, whereby the said petition came to be dismissed. 2. We have heard Advocate Dessai for the appellant. He has contended that the learned Company Judge has erred in holding that the petitioner has resigned as Director of the company and by also observing that acceptance of resignation by the Company is not necessary. He contends that the Judgment of the Hon'ble Apex Court in the case of Moti Ram vs. Param Dev and another., reported at (1993) 2 SCC 725 relied upon for the said purpose by the Company Judge is not an authority for such proposition, and the issue therefor did not arise in that matter. He has relied upon a Division Bench Judgment of this Court in the case of Saumil Dilip Mehta vs. State of Maharashtra and ors., reported at AIR 2002 Bom. 194 to show that there has to be acceptance by the company and, thereafter, only 3 resignation can come into force. He has further stated that the petitioner had raised various grounds and contentions before the Company Court to seek winding up on just and equitable grounds. He points out that there were 4 directors, related with each other and it was a quasi-partnership. In such circumstances, loss of faith in other directors and deadlock were the just and relevant grounds for seeking winding up. He has further urged that loss of substratum has also been pointed out to the learned Company Judge. As already pointed out, the learned Company Judge did not consider all these grounds and only after noticing that the petitioner has resigned as Director, the petition came to be dismissed. Advocate Dessai argues that error committed by applying above mentioned Supreme Court Judgment to the facts here has eclipsed further consideration of controversy by the Company Court. He contends that there is, thus, failure on part of the Company Judge to exercise jurisdiction available to him in the matter. He further points out that the resignations allegedly submitted on 14.11.1996 were not acted upon and the petitioner did not receive any notice of meeting of Board of Directors. It is further stated that the accounts were not written and were not audited as required and all these facts, therefore, necessitated consideration of controversy on merits by the 4 Company Judge. Lastly, it stated that even if it is presumed that the petitioner/appellant has ceased to be the Director, the fact that she continues to be shareholder is lost sight by the learned Company Judge. 3. With the assistance of the learned Counsel, we have perused the records and also the impugned order. The Records reveal that on 11.3.04, there was an agreement between M/s. Sansha Constructions on one hand, present appellant and her husband (present respondent No.4) on the other hand and as per the said agreement, the Company i.e. Sansha Constructions agreed to pay to them consolidated sum of Rs.19,02,000/- only in respect of their share-capital and also on account of any accruals or profits receivable by them from the company M/s La-Joy Hotels Private Limited and also on account of money receivable by them from Mr. Lazaro De Souza and Smt. Joyce De Souza. It is to be noted that the said company La-Joy Hotels Pvt. Ltd., is respondent no.1 in the present appeal and its winding up has been prayed for. The petition was filed for the said purpose in 2004 itself and Lazao De Souza and Joyce De Souza are respondents No.2 and 3 in this appeal. Husband of appellant is respondent No.4. 5 4. The Company Judge has found that the present appellant and her husband submitted their resignations way back on 14.11.96 and 8 years thereafter, the petition for winding up on just and equitable ground was filed. The fact of submission of the resignation was not in dispute before the Company Judge. The petitioner had tried to contend that the resignation letters were given go-bye. The Company Judge has found that those letters were never withdrawn. It has been further noticed that the company accepted the resignations on 2.10.2000. Vide Form No.32-A the Registrar of Companies was informed about it on 27.10.2000 itself. The Company Judge also noticed that inspite of this, the petitioner and respondent No.4 were shown as directors of the company for the year 2001-02. It was also found that on 19.10.96, Board of Directors had resolved that respondent No.2 would hand over an amount of Rs.22.25 lakhs to respondent No.4 on behalf of the company so as to reimburse him for the investment made towards the construction of the hotel project on behalf of the company and that amount was duly accepted by respondent No.4 towards full and final settlement of the claim of petitioner and respondent No.4. It was also resolved that the petitioner and respondent No.4 would retire/resign from the company and the due amount mentioned above, was to be 6 credited in the books of the company to the account of respondent No.2 as his share application money. Accordingly, the petitioner and respondent No.4 tendered their resignations. This factual position is not being disputed before us. Hence, in this background that the contention that the Judgment of the Hon’ble Apex Court in Moti Ram vs. Param Dev and anr., (supra), was wrongly applied or then about the law as settled in the Judgment of Division Bench of this Court in Saumil Dilip Mehta vs. State of Maharashtra and ors., (supra), are not very relevant and it cannot be said that such a consideration has eclipsed further evaluation of controversy by the Company Judge. 5. The facts above also show that as the appellant/petitioner and respondent No.4 were to withdraw and had accordingly, resigned from the company, the contention about loss of substratum by the company is also not relevant. We do not find any perversity in conclusion reached in paragraph 18 of the impugned order. 6. The petitioner had also contended before the Company Judge that the Deed of Cancellation of the Lease Deed dated 19.10.1996, and Power of Attorney dated 11.11.96 were fabricated 7 documents. The Deed of Cancellation of the Lease Deed was executed between the company which was represented by respondent No.4 and respondents No.2 and 3 as owners of land. The Minutes of Meeting dated 19.10.96 are also considered by the Company Judge in paragraph 19 of his order. The Deed of Cancellation of the Lease Deed dated 19.10.1996 was also produced on record along with the power of attorney executed by the petitioner and respondent No.4 in favour of respondent No.3. The Company Judge has also found that letter dated 18.9.96 was addressed to respondent No.4 and was duly served upon him. It is also found that respondent No.4 did not file any affidavit disputing his signature on the Deed of Cancellation of the Lease Deed or the power of attorney. In view of this material on record, the Company Judge could not find favour with the contention of the petitioner that Deed of Cancellation of the Lease Deed dated 19.10.96 or the power of attorney dated 11.11.96 were fabricated documents. 7. The consideration by the Company Judge, as also the documents, show that the subsequent arrangement worked out between the parties in accordance with which the petitioner/present appellant and her husband have withdrawn from the affairs of the company. The 8 resignation dated 14.11.96 is only an additional factor in support thereof. The fact that respondent No.4 i.e. husband of present appellant did not contest the winding up petition, but he filed an affidavit in intervention application of M/s. Sansha Constructions and produced agreement dated 11.3.2004 between him and said M/s. Sansha Constructions is not in dispute. That payment agreed thereunder or part payment received by respondent No.4 in pursuance of it is again not an issue before us. The payment agreed thereunder is for said respondent and present appellant. 8. In view of this consideration, it is apparent that the issue of quasi-partnership or deadlock or loss of confidence or loss of substratum which are, otherwise, relevant while considering challenge under Section 433(f) of the Act do not arise here for consideration. We, therefore, do not find any case made out to enable us to interfere in the order passed by the learned Company Judge. The Company Appeal is, therefore, summarily dismissed. B.P. DHARMADHIKARI, J. U.D. SALVI, J. ssm.