IN THE HIGH COURT OF JUDICATURE AT PATNA COMP. APP. No.6 of 2007 1. Manoj Prasad son of late Jagdish Prasad, residing Near Police Line, Lodipur, P.S. Kotwali, Town & District-Patna. 2. Prem Nath Das son of Late Anuplal Das, resident of Road no.6 New Patliputra, P.S. Patliputra, Town & District- Patna. 3. Nemmi Das, W/O Sri Prem Das, resident of Road No.6, New Patliputra, P.S. Patliputra, Town & District- Patna---- Petitioners ----- Appellants. Versus Shivam Plantation Pvt. Ltd., Shivam Vihar- II, Main Bye-Pass Road, P.O. Lohianagar, P.S. Kankarbagh, Town & Distt. Patna-800 020 ---- Opposite Party – Respondent. ----------- 10. 15.3.2010 Heard Mr. Umesh Prasad Singh for the appellants, and Mr. Arbind Sukla, learned Official Liquidator. In view of non- appearance of the sole respondent in spite of valid service of notice, we have thought it fit to call upon the learned Official Liquidator to assist us. This is an appeal under section 483 of the Companies Act, 1956 (hereinafter referred to as ‘the Act’), and raises a grievance with respect to the order dated 22.2.2007, passed by the learned Company Judge, in Company Petition No.3 of 2003 (Manoj Prasad & Ors. Vs. Shivam Plantation Private Ltd.), whereby he has rejected the 2 application of the present appellants to wind-up the respondent Company. The respondent is a private limited Company and is, inter alia, engaged in the business of plantation management, and sale of trees. The appellants are the share- holders of the Company who filed application under sub-section (c), (e) and (f) of Section 433 of the Act as well as section 439 (1)(c) of the Act praying therein that the Company may be wound-up, inter alia, on the ground that the share-holders are not being paid dividends. The learned Company Judge has dismissed the application on the sole ground that the Company has no assets and, therefore, no useful purpose would be served by ordering for its liquidation. Learned counsel for the appellants has relied on the proviso to section 443 of the Act which, inter alia, provides that the court shall not refuse to make winding-up order on the ground that the Company has no assets. We have perused the materials on record and considered the submissions of 3 learned counsel for the parties. It appears to us from the pleadings before the learned Company Judge that a number of issues have arisen which are illustratively indicated hereinbelow: (i) In view of the position that the lease deed could not be registered, the Company has no assets. (ii) Securities and Exchange Board of India imposed certain restriction. (iii) The applicants were not being paid dividends. It appears to us that those are the basically issues of facts and have to be considered in the perspective. We are of the view that winding-up application in the circumstances of the case can not be rejected on the sole ground that the Company has left with no assets. For example, as submitted by the learned Official Liquidator, it is open to the Company to take steps for registration of the lease deed in which case the Company will have assets. In that view of the matter, we disagree with the order dated 22.2.2007, 4 passed by the learned Single Judge. In the result, this appeal is allowed. Let the matter be placed before the learned Single Judge for a fresh order after taking into account all the contentions raised by learned counsel for the parties. Vinay/ ( S. K. Katriar ,J. ) (Mungeshwar Sahoo, J.)