Paragraph numbers below are the court’s original numbering, recovered from the source text.
22. Sub-section (2) of Section 41 referred to above clarifies D .. t that a person who agrees in writing to become a Member of a Company and whose name is entered in its register of members, shall be a member of the company.
23. Section 108 provides that a Company shall not register transfer of shares unless a proper instrument of transfer duly E stamped and executed by or on behalf of the transferor and by or on behalf of the transferee and specifying the name, address and occupation, if any, of the transferee, has been delivered to the company alongwith necessary certificate or letter of allotment. .,. …. Section 109 deals with transfer of shares by legal representative of deceased Member of the Company. Section 109A relates to nomination of shares while Section 1098 provides for transmission of shares. Section 110 requires making of an application for registration for transfer of shares (or other ' interest) of a Member in the Company either by transferor or by G transferee. Section 111 provides legal remedy of an appeal in case the Company refuses to register transfer of shares or transmission of shares by operation of law.
24. From the above scheme of the Act, it is abundantly A clear that a contributory's right to present a winding up petition must be one either under clause (a) or under clause (b) of sub- section (4) of Section 439. It is nobody's case that clause (a) of Section 439(4) is attracted in the instant case. Hence, Severn Trent can only claim the right to present a winding up petition B under clause (b) of sub-section (4) of Section,439 of the Act. As already seen· earlier, in the following three eventualities, a . ..,.. . winding up petition can be presented by a contributory; (i) shares must have been originally allotted to him; or c (ii) shares must have been held by him and registered in his name for at least six months during the eighteen months immediately before the commencement of the winding up proceeding; or (iii) shares must have devolved on him through the death of former shareholder.
25. Admittedly, Severn Trent. is not the original shareholder. ….. .. Eventuality (i), therefore, has no application in the present case. Regarding eventuality (ii), it is an admitted fact that the name of E Severn Trent has not been registered in the Register of the Company. In the circumstances, it was contended by the learned counsel for the Company before the learned Company Judge, before the Division Bench of the High Court as well as before us that Severn Trent was not entitled to institute a petition for F winding up of the Company.
26. The counsel for the parties, in this connection, invited our attention to numerous foreign decisions. Probably, this is the first case before this Court of the type and, hence, there are no precedents covering the controversy raised before us.
27. Before more than a century, a question came up for consideration before an English Court of Chancery Division in A Company, in Re, (1894) 2 Ch 394. In that case, a petition j. against the company was presented by X who was neither an original allottee of shares nor shares were registered in his name SEVERN TRENT WATER PURI., INC. v. CHLORO CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] ·for a particular period required by law. He thus could not have A . f )- presented the petition under Section 40 of the Companies Act, 1867 (similar to Section 439 of our Act). It was contended on behalf of X that the Company allotted shares to wrong persons who ought not to be allowed to avail themselves of Section 40 of the Act. It was submitted that in equity 'what ought to havE1 been done must be taken as hf:!ving been done', and X should "'T be treated as original allottee.
28. Negativing the contention and holding the petition not maintainable, Vaughan Williams, J. stated; c "There is an express statutory provision as to the qualification of a contributory to present a winding up petition, and that cannot be modified by saying that he ought to be in a position in which he is not. The provisions of sect.40 are not complied with, and I se~ D no reason why the company should not set up that defence.'' ._ …. (emphasis supplied)
29. In H.L. Bolton Engineering Co. Ltd. Re., (1956) 1 All ER 799 : (1956) 2 WLR 844: 1956 Ch 577; the Chancer-Y Court held that Section 224(1) of the Companies Act, 1948 was designed to provide an 'exhaustive list' of those who are entitled to present a petition for compulsory winding-up. If the petitioner is to qualify as a person entitled to present such a petition, it . must be on the ground that he is a contributory at the time of presentation of ·petition. ..,. i
30. Relevant part of Section 224(1) reads thus; "(1) An application to the court for the winding-up of a company shall be by petition presented, subject to the provisions of this section, either by the company or by any G creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories, or by all or any of those parties, together or separately: Provided that- (a) a contributory shall not be entitled to present a winding- c up petition unless- (i) either the number of members is reduced, in the case of a private Company, below two, or, in the case of any other Company, below seven; or (ii) the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months before the commencement of the winding-up, or have devolved on him through the death of a former holder … "
31. Section 224(1) of Companies Act, 1948 is in pari materia to sub-section (4) of Section 439 of our Act, quoted D above.
32. Again, in Gattopardo, Ltd. Re, (1969) 2 All ER 344 : (1969) 1 WLR 619, a similar question came up for consideration before a Court of Appeal. Attention of the Court was invited to a decision in A Company in Re, and the observations of Vaughan E Williams, J. Quoting with approval the observations of Vaughan Williams, Russel, L.J. stated; "I am left with the plain language of the section, and I find myself entirely able to agree with the remarks made in the course of argument by Vaughan Williams, J. .. I echo those words." (emphasis supplied)
33. In J.N. 2 Ltd., Re, (1978) 1WLR183: (1977) 3All ER G 1104, the Court highlighted the extent and applicability of Section 224 (1) of the Companies Act, 1948. It observed; "There seems to be no doubt that entry on the register is an essential qualification for a contributory who desires to present a petition, if he is not the original allottee and if the shares have not devolved -~ J SEVERN TRENT WATER PURI., INC. v. CHLORO CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] on him through the death of a former holder; for if A neither condition is satisfied, section 224(1 )(a)(ii) requires that the shares must have been held by him and registered in his name for at least six months during the preceding 18 months. Plainly, if a transferee is not and never has been on the register, he cannot satisfy that condition. And s it would not seem to be an answer that he ought to have been on the register, unless, perhaps, the company has been ordered to place him on the register and has disobeyed that order. (emphasis supplied) C
34. Reference was also made to leading commentaries by well-known authors on the subject. In Palmer's Company Law, (24th Edn., Vol. I, p.1377), the learned Author stated; "No contributory of a company is capable of presenting 1 a o petition unless- 1. either the number of members is reduced below two; or 2. the shares in respect of which he is a contributory or some of them were (a) originally allotted to him, or (b) have been held by him and registered in his nan:ie for at least six months during the eighteen months before the commencement of the winding up, or (c) have devolved upon him through the death of a former holder [Insolvency Act, s. 124(2)]. The object of these provisions is to prevent a person buying shares in order to qualify himself to wreck the Company. G "Held" means standing in the name of th 1e contributory petitioner. The provisions of section 124(2) must be applied strictly, unless, perhaps, the company itself is in default in allotting shares or registering a transfer''. (emphasis supplied) H
35. Another renowned author Buckley (Buckley on the Companies Act, 14th Edn., Vol. I, p. 537) also considered the scope of Section 224 of the Companies Act, 1948 and stated; "This section is apparently exhaustive, so that a person not within its ambit cannot petition, unless authorized to do so by some other enactment". (emphasis supplied)
36. From the above discussion, it is clear that the provisions of the Act must be complied with before presenting C a winding up petition under Section 439(4)(b) of the Act. If a person intends to present a petition for winding up of a company as a contributory, he/it has to satisfy the Company Court that his/its case is covered by one of the eventualities contemplated by clause (b) of sub-section (4) of Section 439 of the Act.
37. Let us now consider some of the decisions referred to by the learned counsel for Severn Trent..
38. In Bayswater Trading Co. Ltd., Re, (1970) 1 All ER 608, a petition was presented by an Administrator of a lady, E who was a member of the Company and whose name was struck off from the Register. The lady was a substantial shareholder. She died in 1964. The petitioner was her 'personal representative'. Considering the provisions of Section 224(1_)_ of the Companies Act, 1948, the Court held that 'personal representative' of a shareholder was entitled to present a petition for the winding up of the Company, and the word 'contributory' t' ~ should be construed accordingly. It was held that by the Chancery Court that on a true construction of sub-section (1) of Section 224, the words 'any member' must be so construed as to extend to the 'personal representative' of a deceased member, G although not on the register of shareholders.
39. In our considered opinion, the ratio in Bayswater Trading Co. does not help Severn Trent. It was a case of 'natural person' who was a shareholder of the Company, whose name H had been struck off which was sought to be restored. It was not SEVERN TRENT WATER PURI., INC. v. CHLORO CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] a case of 'corporate entity' or 'juristic personality'. Obviously, therefore, in case of her death, 'personal representative' could present a petition for winding up of the Company and such right available under sub-section (1) of Section 224 could not be denied.
40. This is clear form the observations of Buckley, J., who after reproducing sub-section (1) of Section 224, observed; "There is nothing there t.o indicate that a person on whom shares have devolved on the death of a former holder must have been registered as the holder of those shares c before he is entitled to present a petition under Section 224, and I think that those words in the proviso of the sub- section clearly indicate that a personal representative of a deceased shareholder is entitled to present a· petition and that the word 'contributory' in this sub-section must 0 therefore be construed in a way so as to extend to such a personal representative".
41. National Bank of Greece & Athens, South Asia v. Metliss, (1957) 3 All ER 608: (1957) 3 WLR 1056: 1958 AC 509 is also distinguishable. There, the Greek Act governing amalgamation of Banking Companies provided that a new Company absorbing another Company by amalgamation would become 'universal successor' to the rights and liabilities in general of the amalgamated Companies without any other formality or act. It was, therefore, held that the 'universal F successor' could institute an action or an action could be continued against him. "The persona of the deceased is recognized as continued in the heir, or, as it is otherwise expressed, he is eadem personal cum defuncto. He is no more to be regarded G as a new party introduced into a contract than is an executor or administrator of a dead man's estate in English law". (per Lord Keith) (emphasis supplied)
42. It is thus clear that the decision was based on the Greek Law governing amalgamation of Companies. As already adverted hereinabove, in the instant case, neither the foreign law was pleaded nor such evidence has been produced to prove merger/amalgamation. But even otherwise, in our considered B opinion, Severn Trent cannot be treated as or said to be 'contributory' unless and until the requirements of law i.e. the provisions of Section 439(4)(b) have been complied with. It is not disputed that the name of Severn Trent has not been registered in the Register of the Company and hence, it cannot c present a petition for winding up of the Company in the capacity of a contributory.
43. Toprak Enerji Sanayi A. S. v. Sale Tilney Technology pie, (1994) 3 All ER 483 was a case of substitution of party as plaintiff in the place of a foreign company ceasing to exist during D the course of proceedings and was not a case of initiating winding up proceedings. The case in our view, therefore, is not relevant to the controversy in present appeals.
44. Strong reliance was placed by the learned counsel for E Severn Trent on a decision in Patent Steam Engine Company, in Re, 1878 Ch 464 in support of the contention that a petition for winding up can be presented by a person who is holder of a share in the Company although his name is not entered in the Register at the time of presentation of petition. In that case, an order was passed by a Court to allot forthwith to the petitioner, certain preferential shares of the Company and to register them as shareholders and to issue certificates. The order was not complied with by the Company. When a winding up petition was presented by the petitioner, a preliminary objection was raised by the Company that since the petitioner could not be said to G be shareholders as their names were not registered, they were not entitled to institute a petition.
45. The contention was negatived and petition was held maintainable by the Court. In a brief order, Bacon, V.C. said: r SEVERN TRENT WATER PURI., INC. v. CHLORO r CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] r "In my opinion the technical objection has no weight. A The petitioner have been declared by the Court entitled to be shareholders, and the company have been ordered to allot them these shares, and to register them as shareholders in respect of them. These orders the company have failed to comply with, and it is only through • B their default that the petitioners' names were not on the 'y' register upwards of six months ago". (emphasis supplied)
46. In our opinion, the decision in Patent Steam Engine c Company will also not help Severn Trent herein. Firstly, the fact- situation in that case and in the case on hand is totally different. There, the Court ordered the Company to allot to the petitioners, certain specified preferential shares and to register them as the holders of those shares. There was non- compliance of the order of the Court by the Company. Based on entitlement order, D ,._ the petitioners presented a petition for winding up of the Company which was held maintainable in view of the fact that there was default in carrying out the direction of the Court by the Company. In the instant case, despite merger and amalgamation E of Capital Controls (Delaware) Company Inc. into Severn Trent, no step has been taken by Severn Trent for rectification of the register and registration of shares in its name. In our opinion, the Division Bench of the High Court is right in observing that it cannot be contended by Severn Trent that in view of dispute between Severn Trent and Kochas, the Company would not have registered shares in the name of Severn Trent. Had Severn Trent applied and the prayer rejected, an appropriate action could have been taken in accordance with law. Secondly, we have 'some' reservation about the proposition of law laid down in Patent Steam Engine Company. It is debatable whether a direction can be issued by a Court to allot shares or to register name of a particular person as a share-holder. It is also doubtful whether an objection as to maintainability of petition can be said to be objection of a 'technical' nature. In fact, when Patent Steam [2008) 2 S.C.R. Engine Company was cited in Gattopardo Ltd., Russell, L.J. said; "I reserve for a further occasion, consideration whether the exception in the Patent Steam Engine case is one which is to be supported". Thirdly, we have already held that to present a petition for winding up of a Company in the capacity of a B 'contributory', the person must be eligible under clause (b) of sub-section (4) of Section 439 of the Act. If he does not fall in any of the categories enumerated therein, he cannot present such petition. We are, therefore, unable to persuade ourselves that on the basis of the ratio laid down in Patent Steam Engine c Company, Severn Trent must be held 'contributory' and granted locus standito present a petition for winding up of the Company.
47. Severn Trent, no doubt, contended that 'purposive construction' should be given to the provisions of Section 439 (4) of the Act and Severn Trent must be treated as 'contributory'. D It was also submitted that Severn Trent fulfills all the requirements of Section 439(4)(b) of the Act. On March 31, 2003, Delaware Corporation was merged into Severn Trent. Delaware Corporation was thus ceased to exist and the surviving Corporation, i.e. Severn Trent came to be substituted. All assets E and liabilities of Delaware Corporation became the assets and liabilities of Severn Trent and Severn Trent became the 'contributory' within the meaning of Section 439 (4) (b) read with Section 428 of the Act. Severn Trent, therefore, could present a winding up petition. According to the learned counsel, if strict and literal interpretation as advanced by the Company is accepted, a corporate entity or a juristic personality can never become a contributory and consequently a share-holder. It was submitted that there was total deadlock between the two groups. It had not been engineered by Severn Trent, but was the result G of illegal acts and wrongful deeds of the Company and Kochas. It is, therefore, impossible that the Company would register the name of Severn Trent in the Register of Company and extend Severn Trent an opportunity to present a winding up petition against the Company. SEVERN TRENT WATER PURI., INC. v. CHLORO ….,…. CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.].
48. We must express our inability to uphold the contention A of learned counsel. In our judgment, sub-section (4) of Section 439 is a 'self-contained Code' as to presentation of petition by a contributory. A person claiming to be a contributory and presenting a petition for winding up of a Company in that capacity must fulfill the conditions laid down in the said section. Moreover, as observed by us, if there is omission, default or "Y' illegal action on the part of the Company in not registering the name of the contributory even though he/it can be said to be a contributory by holding the shares as required by clause (b) of sub-section (4) of Section 439, the law provides a remedy. In c the instant case, however, no such course has been adopted by Severn Trent. In the circumstances, in our opinion, it cannot be said that the Division Bench of the High Court was in error in holding that Severn Trent could not be said to be a contributory to present a winding up petition. > )r-
49. The learned counsel for Severn Trent finally relied upon the last part of clause (b) of Section 439(4) contending that shareholding of the original company (Delaware Company) had devolved on Severn Trent through 'death' of that company which was a former holder. It was also submitted that Section 430 of E the Act enacts that if a contributory dies, his legal representatives will become contributories. Section 431 deals with contributories in case of insolvency of a member. Section 432 relates to cases of winding up of a body corporate which is a member. The ….. -T counsel urged that the A~t does not provide for a situation where a corporate shareholder ceases to exist otherwise than by way of winding up. It was also submitted that Section 394(1)(b)(iv) of the Act speaks of dissolution of a company without winding up. In such situations, it is evident that the successor-in-interest will be the surviving entity and, as such, can be said to be G _,_ contributory for the purpose of presenting a winding up petition. It was, therefore, urged that Severn Trent must be held to be a successor of the original allottee of shares, i.e. Delaware Corporation and the party on whom the shares have devolved, i.e. Severn Trent. The situation in the present case, according H to the learned counsel, is akin to 'civil death' of Delaware Corporation. Since there is 'death' of former holder which expression would include dissolution/winding up of a corporate shareholder, the right to present a winding up petition must be conceded to Severn Trent, successor of former holder. It was s submitted that it would be incorrect to urge that the use of expression 'he', 'his' or 'him' would apply only to natural persons and not to corporate personalities. If the said view is accepted, winding up petition can never be filed by a successo·r Company even if it holds shares earlier held by the 'former holder'. c
50. The above argument weighed with the learned Single Judge and he observed that though Severn Trent was not the person who was originally allotted shares nor its name was registered in the register of the Company but the expression 'or have devolved on him through the death of former holder' would D get attracted inasmuch as upon merger/amalgamation of Capital Controls (Delaware) Company, Inc. in Severn Trent, the former Company i.e. former holder can be said to have been met with 'death' and the shares held by the said Company could be said to have devolved on Severn Trent. If.it is so, obviously, a petition E filed by Severn Trent as a 'contributory' was maintainable.
51. The learned Company Judge, after referring to Section 439(4)(d) observed as under: "On considering the said section as quoted above there is no manner of doubt that a contributory is a shareholder of the company. In fact in cases of amalgamation the shareholding of erstwhile company stood automatically transferred and vested from the transferor company to the transferee company and thus the transferee company becomes the successive holder of the said shares by operation of law".
52. The learned Judge proceeded to state; "Otherwise also prima-facie in my opinion s.439(4)(b) does not restrict the petitioner from filing the present petition … T SEVERN TRENT WATER PURI., INC. v. CHLORO CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] because it falls in the last category i.e. 'or have devolved A on him through the death of a formal holder'. These words under s.439(4)(b) prima-facie in my opinion takes into account the situation as in the present case whether the company has ceased to exist by virtue of amalgamation of the said company with the petitioner company. The said 1 B original company has ceased to exist and thus there is a natural death in the eyes of law and in view thereof by virtue of the aforesaid words contained under section , 439(4)(b) prima-facie in my opinion the present petition is maintainable and the same can be entertained". c
53. The Division Bench again considered the matter and ' observed that the analogy drawn by the learned Company Judge was not well founded. According to the Division Bench, the category, "or have devolved on him through the death of former holder" would be applicable only to personal representative in D his individual capacity and not to corporate entity or juristic personality.
54. In paragraph 37 of the judgment, the Division Bench of the High Court observed; "37. We are afraid, the analogy drawn by the learned company Judge is wholly fallacious. The category, "or have devolved on him through the death of former holder'' is . applicable only to personal representative of a person holding shares in the company in his individual capacity. The said expression applies to devolution of rights on the death of natural person and has no application to a corporate entity or the juristic person. The submission of Mr. Shyam Divan that these words could also be applied to the company which has ceased to exist like the Courts G have held that the corporate entity was liable to be contempt jurisdiction of the Court does not appeal us. If we accept the reasoning of the learned Company Judge and the submission of the learned senior counsel for the petitioner, it would be tampering with the plain language used in the H · ·[2008] 2 S.C.R. last category of clause (b) of subsection (4) of Section 439 which we cannot do".
55. In our opinion, the Division Bench of the High Court was right in holding that the phrase "or have devolved on him through the death of former holder" would apply to natural persons who are holding shares in their individual capacity and not to juristic entities. 1' –
56. The word 'death' mentioned in a statute normally refers to the seizing of life of a natural person. In Stroud's Judicial c Dictionary of Words and Phrases, (Vol. I, 5th Edn. P.610), it is stated; "Where 'death' is mentioned in a statute, the word generally refers to the ceasing to live of a natural person; it will . require a strong context to make the word include the dissolution of an artificial entity, e.g.· a partnership or a Company". ~ -1:
57. In Stewart v. Brown, 35 SLR 828, the Court held that it was invited to interpret the words 'deceased debtor' as being E equivalent to 'dissolved company' and the word 'death' as being equivalent to 'dissolution of partnership'. The Court further held i that such interpretation could not be given.
58. Lord M'Laron said; "I am not sure that. I understand the theory or principle of construction under which the suggested readings are r j admissible; but I think it must be a theory in which fancy takes the place of logic, and in which the t:c question proposed is,· how the statute is to be made to fit the case, and not whether the conditions of the r case fit the statute". (emphasis supplied)
59. In the context of Company Law, winding up of a body corporate is not the same thing as or equivalent to death of a member. An individual and a body corporate expressly have H been treated .separately which i·s clear from Sections 430, 431 :; + SEVERN TRENT WATER PURI., INC. v. CHLORO CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] and 432 of the Act. Under the scheme of the Act, every creditor A may present a petition for winding up of a company, but every contributory cannot. A contributory to be eligible and qualified to present a winding up petition must be covered by sub-section (4) of Section 439 of the Act and the Legislature, in its wisdom, excluded certain categories of persons from being entitled to present a petition for winding up as contributory. As already held by us earlier, the provision is exhaustive in nature and its sweep cannot be extended by judicial interpretation. Upholding of argument of Severn Trent and conceding the right to present a petition for winding up of a Company though it cannot be said c to be a contributory would, in our judgment, result in re-writing of the provision. A Court of law cannot adopt a construction which would result in amendment of a statute. The contention of the learned counsel for Severn Trent, therefore, must be rejected.
60. A decision of this Court in Mis World Wide Agencies D Pvt. Ltd. & Anr. v. Margaratt. Desor & Ors. (1990) 1 SCC 536 has no application to the facts of the case. It was not a case of corporate personality, but of an individual shareholder and a claim was based by a legal representative of the member.
61. Saraswati Industrial Syndicate Ltd. v. C~mmissioner' E of Income Tax, 1990 Supp sec 675 also does not carry the case of Severn Trent further. In that case, the question before the Court did not relate to locus of the petitioner to present a petition for winding up of a company as a contributory.
62. Dr. Saibaba v. Bar Council of India & Anr., (2003) 6 SCC 186 and Union of India v. Rajiv Kumar, (2003) 6 SCC ' 516 lay down principles of interpretation of statutes. These principles are well-known and the learned counsel for the Company did not dispute them. They are, however, not 1 G applicable to the facts of the case.
63. For the aforesaid reasons, we answer question No.1 in the negative and hold that a winding up petition filed by Severn Trent in the capacity as a contributory is not maintainable. 2. Whether a winding up petition filed by Severn Trent is maintainable in the capacity as a creditor? 64. So far as second question is concerned, reading of the order passed by the learned Company Judge makes it clear that no such argument was raised on behalf of Severn Trent presumably because there was no occasion for such argument inasmuch as according to the learned Company Judge, Severn Trent could be said to be a 'contributory' within the meaning of Section 439 (4)(b) of the Act and a petition presented by Severn Trent in that capacity was tenable._ Since the order passed by C the Company Judge was challenged by the Company before the Division Bench and the Division Bench upheld the objection of the Company and reached a conclusion that the learned Company Judge was wrong in treating Severn Trent as 'contributory' and granting it locus to present a petition for D winding up of Company, that an alternative argument was raised on behalf of Severn Trent that Severn Trent was also a Creditor of the Company and in that capacity i.e. in the capacity of a Creditor, the petition for winding up of the Company was maintainable. 65. The Division Bench considered the alternative contention and in paragraph 54, observed; "54. This aspect was not canvassed by the petitioner before the learned Company Judge in response ·to the preliminary objection raised by the appellants that the company petition was not maintainable and, therefore, not considered by the learned Company Judge_. We are of the view that this aspect has to be considered by the learned Company Judge before admitting the petition for winding up on the just and equitable grounds in the capacity as creditor. In so far as the reasons that have bee'n indicated by the learned Company judge for admitting the petition are ooncerned, we find these reasons unsustainable. As already held by us, the petition for winding up order as a contributory under Section 433(f) l ..j_ -,… ..,.:….. —-> t· I r- l f –\- SEVERN TRENT WATER PURI., INC. v. CHLORO CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] read with Section 439(4)(b) of the Companies Act, 1956 A is not maintainable. Until the petition is legally maintainable, the issue of deadlock in the company pales into insignificance". 66. It was contended on behalf of the Company that the B Division Bench has committed an error of law in observing that ·'r the petition filed by Severn Trent was maintainable in the capacity as a Creditor of the Company and in remitting the matter before the Company Judge. It was submitted that looking to the company petition in its entirety and also the grounds and prayers, it is c clear that the petition was not presented by Severn Trent as 'Creditor' of the Company but as a 'Contributory'. The contention as to 'Creditor' was raised belatedly for the first time in argument before the Division Bench which was an afterthought. This is apparent from the observations of the Division Bench in the impugned order in para 54 extracted earlier. It was, therefore, D ~…,. submitted that no such argument could have been permitted and to that extent, the order passed by the Division Bench of the High Court deserves to be interfered with. 67. We have given anxious consideration to the above E submission. In our opinion, however, it cannot be said that the Division Bench was in error in passing the impugned order and remitting the matter to the learned Company Judge to consider the question as to maintainability of company petition filed by Severn Trent as a Creditor of the Company. In this connection, our attention has been invited by the learned counsel for Severn Trent to the company petition. In para 16 of the petition, it was stated by Severn Trent that it was also a Creditor of the Company and 'admitted sums owed by the Company to Severn Trent' had not been paid. It was further stated that the Board of Directors of the Company and the Managing Director had acknowledged ~ >- the Company's liability to Severn Trent in various communications and Board Meetings. It was further stated that in the circumstances, Severn Trent was constrained to issue legal notice on August 4, 2004 demanding payment of all 1166 . [2008) 2 S.C.R. …. A outstanding dues. A copy of ·the demand notice was also annexed to the company petition. According. to Severn Trent, total amount due and payable by the Company to Severn Trent as on July 31, 2004 came to US $ 575113.29. In ground (i) also, it was the case of the Company that there was intentional B refusal by Mr. Kocha to allow the Company to pay its admitted debts to Severn Trent. In paragraph 41, it was stated by Severn 1' Trent that it was just, equitable, necessary and in the interest of justice and 'in order to secure the dues of the petitioner that Provisic;mal Liquidator should be appointed'. c 68. It is thus clear that though the case put forward by Severn Trent in the winding up petition was as a 'contributory', the factum of the Company being Debtor and Severn Trent being Creditor and in spite of dues being admitted by the Company, there was non payment on the part of the Company had been D mentioned in the petition. The learned counsel for Severn Trent appears to be right that in view of the finding by the learned Company Judge that the petition instituted by Severn Trent as a 'contributory' was maintainable, it was no more necessary for the learned Company Judge to consider the question whether E the company petition filed by Severn Trent was maintainable in the capacity as a Creditor. 69. It was then contended by the learned counsel for the Company that the ground for winding up of Company under F clause {f) of Section 433 was not available to Severn Trent in r case it had presented a petition as a Creditor of the Company. In this connection, our attention was invited to certain decisions. In our opinion, it would not be appropriate to express any opinion one way or the other since we are of the view that the Division Bench of the High Court was not wrong in allowing Severn Trent to argue that point before the learned Company Judge as that -<(—… point did not arise before him earlier. We may, however, hasten to add that we may not be understood to have recorded a finding that the petition presented by Severn Trent is maintainable. We clarify that as and when the matter Will be taken up by the learned SEVERN TRENT WATER PURI., INC. v. CHLORO CONTROLS (I) P. LTD. & ANR. [C.K. THAKKER, J.] Company Judge, it will be open to the Company to raise a contention that no such petition as presented is maintainable in the capacity as a Creditor. 70. Question No. 2 is answered accordingly. 3. Whether a winding up petition filed by Severn Trent B is liable to be dismissed at the threshold on the ' ground of premature advertisement by ~evern Trent without the order of the Court as required by law? 71. So far as the third question is concerned, neither the learned Company Judge, nor the Division Bench has decided C it. Before the learned Company Judge, no such contention appears to have been advanced by the Company. Before the Division Bench, it was argued that since there was premature advertisement by the Severn Trent without any order from the Company Court, there was 'abuse of process of the Court' by D Severn Trent and the petition was, liable to be dismissed only on that ground. Before us also, the above contention was reiterated by the learned counsel for the Company and in support thereof, case-law has been cited. The learned counsel for the Severn Trent, however, submitted that the advertisement was , E qualified, carefully worded and the facts stated therein were accurate. It was essentially a notice to creditors, contributories and other persons intimating about presenting of winding up ' petition and there was no ma/a fide intention or oblique motive in issuing the advertisement. We may only state that since the . F Division Bench of the High Court has remitted the matter to the learned Company Judge and granted liberty to the Company to oppose admission of the Company petition on all available grounds including the ground of 'premature advertisement', we need not express any opinion one way or the other. As observed G by the Division Bench of the High Court, at the time the company petition will be taken up by the Company Judge for admission, it will be open to the Company or contesting respondent to oppose the admission on all grounds available. 72. Question No. 3 is answered accordingly. 73. For the aforesaid reasons, the appeal filed by Seven Trent Water Purification lnc.-petitioner of the company petition, deserves to be dismissed and is hereby dismissed. So far as the appeal filed by the Chloro Controls (India) is concerned, it is disposed of in the light of the observations made in the judgment. 74. On the facts and in the circumstances of the case, all the parties are directed to bear their own costs. S.K.S. Civil Appeal No. 1351 of 2008 dismissed and Civil Appeal No. 1353 of 2008 disposed of.