The court has the discretion to refrain from ordering the advertisement of a winding up petition in a fit case.

D.Falshaw, J.

1. This is an appeal under Clause 10 of the Letters Patent against an order passed by Mr. S. B. Capoor as Liquidation Judge on the 27th of January, 1961.

2. The facts are that a Petition was filed by Shrimati Abnash Kaur on the 25th of November, 1960, for the winding up of the present appellant company, the Lord Krishna Sugar Mills Ltd. The petitioner claimed to be holding shares of the value of Rs. 72,000/- out of the total paid-up capital of Rs. 12,00,000/- and also that her minor son Kanwal Kishore who was under her guardianship was holding 7.100 shares valued at Rs. 71,000/-and the winding up of the company was sought on the ground that it was just and equitable on account of the alleged oppression of the minority share-holders and various allegations of mismanagement.

2a. The petition came before my Lord the Chief Justice for admission on the 30th of November, 1960, when he ordered the issue of notice to the company. Mr. Ved Vyas, Advocate, who was present at the time accepted notice on behalf of the company and it was ordered that the matter should be posted for preliminary issue without issue of citation on the 9th of December, 1960. The case actually came before Tele Chand J. on the 15th of December when he passed the following order : "Admitted. Mr. Ved Vyas accepts notice on behalf of the company. Case to come up on 6th January, 1961, to consider issue of citation etc. Written application has been filed by the company and Mr. C. K. Daphtary accepts notice. Written reply may be filed by 3rd of January, 1961. This application will also be heard on 6th January, 1961."

3. It appears that on the 15th of December, 1960, the company had filed an application praying that the winding up petition should be dismissed in limine, or in other words for the revocation of the order of admission and since then further applications have been filed that the winding up petition should be rejected on the ground that it has been filed mala fide and also praying for an order under Sec. 443 (2) of the Companies Act, 1956 , which provides that where the petition is presented on the ground that it is just and equitable that the company should be wound up, the Court may refuse to make an order of winding up, if it is of opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy. These applications are still pending and a date is said to have been fixed in March for evidence on the question of mala fides,

4. In these circumstances that learned Single Judge passed the order under appeal on the 27th of January, 1961, for the issue of citation regarding the winding up petition in the official Gazette and two newspapers. The learned Single Judge was of the opinion that the issue of citations was mandatory and that he had no option or discretion in the matter.

5. It may he mentioned that although the company is nominally a public company it is stated without contradiction that substantially it is a private and family company in which, apart from a few shares held by outsiders, roughly 2/9th of the shares are held by the petitioner and her minor son while about 7/9th of the shares are held by the opposite party which consists of sons of the late husband of the petitioner by his first wife and the case of the company, which virtually consists of these sons, is that the company is prosperous and that the petition has been filed mala fide because of other disputes between the parties with the object of forcing the sons to buy the shares of the petitioner and her minor son at a very much higher price than their market value.

6. The relevant rules regarding the issue of citations, or in other words advertisement, are as follows. Rule 24 reads :

"(1) where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these Rules otherwise provide, be advertised not less than fourteen days