A partner can file for LLP winding-up even without full compliance of procedural documents, highlighting statutory provisions allowing such actions under claims of oppression or mismanagement.

ORDER

Per Coram:

1. This Winding-Up Petition has been filed by one of the partners of M/s Hardoll Enterprises under the provisions of the LLP Act, 2008. This Tribunal issued notice, and the Respondent Nos. 2 to 5 appeared through their counsel. The respondents No.2 to 5 in the main Petition filed objections on the maintainability application. The said objections were allowed by this Tribunal vide order dated 09.08.2023. Thereafter Petitioner in the main Petition approached the Hon’ble High Court of Kerala. The Hon’ble High Court of Kerala has set aside the order of this Tribunal vide the Judgement dated 11.10.2023 in OP(C) No. 1859 of 2023 and remanded the matter for fresh adjudication. This Tribunal, after hearing both sides again passed orders dated 04.04.2024. The operative part of the order dated 04.04.2024 is under: -

8. The matter being remanded back was taken up again on 16.02.2024. On the day, the applicants argued on the following grounds: -

i. Petition does not meet requirements for filing petition under Rule 26(4) of LLP rules, 2012 as the petition for winding up of an LLP should necessarily have ‘statement of affairs’ accompanied with it.

ii. Petition cannot be filed by a single partner without a 3/4th resolution.

iii. Petition needs to be filed in Form 28 which mandate above documents.

iv. Existence of arbitration between parties and Tribunals powers under Rule 27(2) to refuse winding up of LLP as alternate remedy is available.

v. NCLT not a forum to raise inter se dispute between parties

9. Now point no.(iv) and (v) supra need not be considered here as this application here is not the main petition but an application for deciding on the question of maintainability of winding up petition presented by a single partner of LLP without accompanying the petition with statement of affairs and 3/4th resolution of partners. It is settled position that maintainability questions need to be considered in view of the legal impediments to entertain the petition. In respect of the formalities imposed by Rule 26, it is clear from the sub rule (1)(a) that a petition for winding up can be presented by any partner. Further as to the petition being hit by conditions imposed in Rule 26(4) i.e for production of statement of affairs and resolution, it is necessary to see Rule 28 which pertains to a case where any person other than LLP filing a winding up petition, in which case, this Tribunal can if circumstances appear so, order LLP to file its objections along with statement of affairs. Further in Rule 101, petition for winding up, it mentioned clearly in proviso to sub rule (1) that petition in case is made by LLP shall accompany with the statement of affairs. In this case, the petition presented by a partner without LLP’s support can present this petition as per law but need not accompany it with statement of affairs and 3/4th resolution because it is not a case of voluntary winding up but only a winding up sought in view of the disputes alleging oppression and mismanagement. During the course of proceedings, this Tribunal also tried to encourage mediation between parties but it went without results. Hence considering the due processed envisaged under the LLP Act, 2008, we find that this the main petition is clearly maintainable in law. However, keeping the orders from Hon’ble High Court of Kerala in mind, the matter of admission of the main petition cannot be deferred without further. Therefore, we are inclined to direct the respondent no.1 Hardoll Enterprises LLP, respondent no. 1 in CP(C/Act