INDERMEET KAUR, J.

1. The petitioners (hereinafter referred to as the DKG Group) seek winding up of the respondent company (Eden Park Hotels Pvt. Ltd.) under Section 433 (c) & (f) of the Companies Act. There are four petitioners before this Court. Petitioner no.2 (Davinder Kumar Jain) had special relations with respondent no.3 (Sushil Kumar Gupta); they were close family friends. The relationship of the two families dates back to the pre-independence period; over the years a relationship of trust and confidence was established between the members of both the families who were in constant touch with each other. The two family groups had entered into two different business ventures. Petitioners (hereafter referred to as the DKG Group) were doing the business of real estate and exports; whereas the Gupta family (hereinafter referred to as the SKG Group) had ventured into the hotel business. Business of both the family groups flourished over time. The SKG Group knowing the financial viability and credibility of the DKG Group invited them to jointly set up a chain of hotels. At that time respondent no.3 was a partner in a hotel property in Delhi.

On 20.3.2001 the petitioner no.2 and respondent no.3 agreed to start a business in equal partnership with an equal shareholding and accordingly they incorporated a new company under the name and style of “M/s Luxor Hotels and Resorts Private Ltd.” (which later came to be known as Eden Park Hotels Pvt. Ltd. vide order dated 27.11.2002) The company was on the lookout for the properties to start a hotel business. An application was submitted to the government in the name of a Consortium (comprising of the DKG group, the SKG group as also the respondent company). Bids were submitted for the acquisition of three hotels; the Consortium qualified as a successful bidder for the acquisition of Hotel Qutub. The sale of the Qutub Hotel was effected by the Government of India and the Indian Hotels Company Limited by selling their holding of 99.97% of the issued equity share capital of Edenpark Hotels Pvt. Ltd. which owned the said hotel property. It was agreed and understood between the petitioner no.2 and respondent no.3 that share of the Edenpark Hotels Pvt. Ltd. was to be transferred entirely to the respondent company. On 19.03.2002, parties entered into a shareholder agreement (SHA) pursuant to which the Articles of Association of the company (AOA) were amended on 20.03.2002.

Preliminary Submission

At the outset before proceeding with the arguments a proposal for a settlement was mooted between the parties. On 02.5.2012, both the parties had agreed to make efforts to explore the possibility that if the plot owned by the company could be divided into two lots for use and occupation of the respective parties on fair and equitable terms. The parties had agreed to examine if the FSI/FAR could be equitably divided between the two groups; SKG group has submitted that the offer would be acceptable to it only if he gets the lot with the existing hotel. However, on the next date, a case of non-settlement was reported. The parties appear to be at a deadlock over this proposal. Learned counsel for the respondent insists that FSI/FAR is still available and the construction of another hotel is possible but the petitioner disputes this submission. His submission being that the property admittedly being a lease hold property; no further construction may be permissible; hurdle of the Archeological Survey of India (ASI) would also creates a blockade; this proposal cannot materialize. It is thus accepted that no useful purpose would be served in taking up the matter any further. The Court has thus proceeded to decide the controversy between the parties on its merits.

Arguments of the petitioner

Submission of the petitioner is that Section 433 of the Companies Act gives wide powers to the Company Judge to wind up a company; there is a complete deadlock between the two groups; petitioner has no other alterna