YOGESH KHANNA, J.

1. The petitioners are the shareholders and directors of the respondent company and have filed this winding up petition. Mr. Amit Mittal is authorized by Special Power of Attorney to institute the petition on behalf of the petitioners.

2. The respondent company, incorporated under the Companies Act, 1956, is a joint venture of M/s SMX Technologies Ltd. UK and M/s Interactive Solutions Pvt. Ltd. having its registered office at 101, South Delhi House, 12, Jamadpur Community Center, New Delhi with an authorized share capital of Rs.5 lakh divided into 50,000 equity shares of Rs.10/- each. The aims and objects of the respondent company are given in the Memorandum and Articles of Association. The certificate of incorporation, memorandum and article of association are annexed to the petition. The share capital is fully subscribed by Ms. Indira Sehgal, Ms. Harinder Kaur and Mr. Kartik Sehgal. Pursuant to the incorporation these three person along with one Mr. Vijay Kumar Chandra were appointed as directors.

3. The petitioners are the founder director of one M/s SMX Technologies Ltd. UK engaged in business of developing software and providing Information Technology (IT) solutions. Its registered office was at Suite 38-40 London Fruit Exchange, Brushfield Street, London, E1 6EU, UK. Since the petitioner’s company was desirous of establishing a multinational IT solution company with a worldwide presence, they decided to incorporate a subsidiary company in India. The idea was to combine European innovation, management and access to western markets with Indian IT expertise in a cost effective manner. Thus, a Memorandum of Understanding between M/s SMX Technologies Limited, UK and M/s Interactive Solutions Pvt. Ltd was executed on 31.03.2002 at Delhi. SMX India was to be created by changing the name of M/s Interactive Solutions Pvt. Ltd and reissuing shares as per agreed shareholding structure after obtaining requisite approval from the Registrar of Companies, RBI and / or any other concerned authority.

4. In pursuance of joint venture, M/s Interactive Solution Pvt. Ltd. passed requisite resolutions for increasing authorized share capital and changing its name to M/s SMX Technologies India Limited.

5. Resolution dated 09.02.2002 was passed increasing share capital of the company from Rs. 2,00,000/- to Rs. 5,00,000/- into 50,000 shares of Rs. 10/- each.

6. A resolution was also passed in terms of Section 21 of the Companies Act, 1956, dated 18.04.2002 changing the name of the company from M/s Interactive Solutions Private Limited to SMX Technologies (India) Private Limited. Thereafter a fresh certificate of incorporation was issued on 02.05.2002 under Section 23 (1) of the Companies Act, 1986. The Memorandum and Articles of Association was filed with the Registrar of Companies subsequent to change in name. Subsequent to execution of Memorandum of Understanding, the share holding of the Respondent Company was also restructured and Petitioners were allotted 1500 shares each on 27.05.2002.

7. Apart from participation by way of purchase of equity and contribution of funds so as to enable the Respondent Company to commence business operation, the agreement arrived at and entered into does not spell out a larger role for the Petitioners. As far as control and management of the day-to-day affairs of the Respondent Company is concerned, the same were to vest with Mr. Kartik Sehgal, Managing Director.

8. Mr. Kartik Sehgal was acting in a fiduciary capacity and it was incumbent upon him to not only protect the interest of the Respondent Company but also the interest of its joint venture partners i.e. the Petitioners and M/s SMX Technologies Ltd. Mr Seghal has however violated the trust so reposed and has by a series of deliberate acts succeeding in defrauding the Petitioners.

9. Due to the loss of faith and confidence, no business has been done since financial year commencing 2002-2003 onwards. Business activity stands suspended. Ir