( 1 ) THIS petition has been filed undet Ss-433 (a) (e) and (f) read with S. 439 of the Companies Act, 1956 for winding up of the petitioner- company. Prior to filing of this petition, the petitioner has filed petition under Rs. 397 and 398 of the Companies Act before the Company Law Board. Certain ex parte interim orders were passed m that petition by the Company Law Board. In para 21 of the petition the petitioner has stated that petitioner no. 1 was of the view that winding up would be prejudicial to the company and unfair to the interest of petitioner no. l and, therefore, petition before the Company Law Board, as aforesaid, was filed but the present petition has been filed by the petitioner contending that petitioner no. 1 is holding more than 99 per cent shares and petitioner is no longer interested in the running of hotel and, therefore, he has no interest in prosecuting Petition No-16/95 pending before Company Law Board, New Delhi.

( 2 ) THE main contention of counsel appearing for the petitioner Mr. Satish Chandra is that only ground asgitated in the petition is that the company should be wound up on just and equitable ground. The case put up by the petitioner in the petition is that long before the incorporation of Kamini Hotel (P) Ltd. a sum of Rs. 5,73,000. 00 was given by the petitioner to respondent no. 1 without obtaining receipt on trust and faith as there was a deed of partnership entered into between petitioner no. 1 and respondents 2 and 3 for the construction of the hotel. It is this amount which-the petitioner has highlighted, which according to him was converted into allotment of 44000 shares of RS. IO. 00 in favour of petitioner no. l on 3. 10. 94 and on the basis of this money and allotment of shares the petitioner canvassed before me that they were owners of 99 per cent shares of the company which is vehemently disputed by the opposite party.

( 3 ) SUM and substance of what Mr. Chandra has contended is that out of the aforesaid amount a part was towards allotment of shores, allotment of 44000 shares of RS. IO. 00 was made by the Board of Directors on 3. 10. 94 and Form no. 32 duly signed by Smt. Kamini Mittal respondent no. 2 was filed with the Registrar of Companies, Delhi and Haryana at New Delhi. It is admitted case of parties that the plot in question was purchased on 9. 7. 91 in the name of respondent no. 1 only. Mr. Chandra has contended that on 4. 3. 92 partnership deed was entered into between respondents nos. 1 and 2 with the petitioner and a recital in that partnership deed was incorporated which is at page 85 of the paper book that respodents 1 and 2 and the petitioner were absolute owners of 1/2 share in the aforesaid land though this fact has not been mentioned in the sale. deed due to oversight. The company, Kamini Hotel (P) Ltd was incorporated on 15. 5. 92. He has also contended that the name of the petitioner was also recorded in the municipal licence dated 30. 4. 94. Mr. Chandra has contended that the shares were allotted in terms of provisions made in the Articles of Association of the company by a meeting of the Board of Directors. He has also contended that no notice for such allotment was required and copy of the minute book containing, inter aha, that the meetings were indeed held and on the basis of such meetings the resolution to open bank account was also taken have been filed.

( 4 ) LEARNED counsel for the petitioner has also contended that the returns regarding allotment of shares and addition of directors were duly filed with the Registrar of Companies.

( 5 ) ON the other hand, Mr. Chawla, learned counsel appearing for the respondent contended that no shares could be allotted and allotment of shares per se is inconsistent with the Articles of Assodatioin, particularly, Clause 5. 45 and Clause 6 of said Articles. He has further contended that no notice of the meeting of the Board of Directors was given as contemplated in the Articles of Association and, the