Judgment :- 1. This petition is by 17 persons 1 to 14 as members and 15 to 17 as creditors of The Cape Comorin General Traffic Company Limited (in liquidation), Ramavarmapuram, Nagercoil. This was presented in the District Court of Nagercoil and numbered there as O.P. 4 of 1124 which was withdrawn by this Court for trial and disposal and re-numbered here as O.P. 147/1951. The application is under S.192 of the Travancore Companies Act (corresponding to S.153 of the Indian Companies Act) and is the first application under Cl. (1) of that Section, praying for liberty to hold a meeting of the members of the company under the orders of the Court for considering an arrangement proposed concerning the continuance of the company. This is opposed by some of the members (contributaries) as also by the Official Liquidator. 2. We must notice an argument urged by the learned Advocate General as to the maintainability of the application. It is contended by him that under S.153, Cl. (1) which provides that: "Where a compromise or arrangement is proposed between a company and its creditor or any class of them, or between the company and its members or any class of them, the court may, on the application in a summary way of the company or of any creditor or member of the company or, in the case of a company being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members of the company or class of members, as the case may be, to be called, held and conducted in such manner as the court directs:" The application can be made only by the liquidator because this is "the case of a company being wound up" by the court. The provisions of the English Companies Act, S.153 are similar. In commenting upon the English Section, in Palmer's Company Precedents, Part II Winding Up, (15th edition), page 906, it is stated that: "A proposal for an arrangement or compromise is not confined to the company or its liquidator [if any]. It is open to any creditor or member to take the initiative. In commenting upon the English Section, in Palmer's Company Precedents, Part II Winding Up, (15th edition), page 906, it is stated that: "A proposal for an arrangement or compromise is not confined to the company or its liquidator [if any]. It is open to any creditor or member to take the initiative. The Act expressly provides that the court may, on the application in a summary way of the company, or of any creditor or member of the company, or in the case of a company being wound up, of the liquidator, order a meeting & c." We consider that this is the proper construction to put on the provision. The introduction of the words "in the case of a company being wound up, of the liquidator" is intended to provide an additional and not an exclusive person who could make the application. If a company, or a member, or a creditor may make the application under S.153(1) proposing a compromise or arrangement in the case of a company which is not under liquidation, there is no reason why any of them should not be competent to make the application in the case of a company which is being wound up. The interest that entitled the company, member or creditor to make the application in the case of a going concern subsists even after an order for winding up is made to sustain a similar application even at that stage. "The application for the holding of a meeting as contemplated in Sub-s. (1) may be made, either by the company or by any member or creditor of the company. Where the company is being wound up, the application may be made also by the Official Liquidator". (Sirkar, Indian Companies' Act, P. 398. See also A.I.R. 1939 Madras 318 at P. 322). We therefore over-rule the objection and hold that the present application is competent. We may, however, mention that the junction of petitioners 15 to 17 who claim to be creditors of the Company is unnecessary, if not unjustified as the arrangement proposed does not in any manner affect or curtail the remedies or claims of any creditor. 3. The Company was incorporated in the year 1906 (1081 M.E.) with a capital of 5 lakhs of rupees made up of 5,000 shares of the face value of Rs. 100 each. Rs. 3. The Company was incorporated in the year 1906 (1081 M.E.) with a capital of 5 lakhs of rupees made up of 5,000 shares of the face value of Rs. 100 each. Rs. 30 was paid up leaving a reserve liability of Rs. 70 per share. The business that the company carried on was the manufacture of salt. The company obtained a licence in that behalf from the Government of Travancore for a period of 50 years, of which six or seven years have yet to run. The father of the 12th petitioner was the secretary and treasurer of the company from its inception for about 30 years and on his death, the 12th petitioner succeeded him to that position for life. Four out of the five thousand shares are either owned or absolutely controlled by the secretary and treasurer. Instead of calling up the unpaid share capital, the secretary and treasurer functioned as financier to the company imposing onerous terms by way of a high rate of interest besides stipulating for a share in the profits. The liability that the company incurred in this fashion was allowed to accumulate and the factory was put in the possession of the financier to enable him to recoup his dues. There was a sub-lease of the factory to another party latterly. The result of all this was that notwithstanding the fact that the company was working and working profitably, no dividend was declared to the share holders, all the profits being absorbed in the appropriation of the amounts due to the secretary and treasurer by way of liquidation of the company's liabilities. This state of things was brought about and sustained by the secretary and treasurer by using his voting power with a packed majority, tyrannising over the minority to its detriment. Petitions for winding up the company were filed in the District Court, Nagercoil, in the year 1110, 1111 and 1112, which ended in a compromise the main feature of which was "putting on the Board of Directors, 3 representatives from the minority share holders, that is, shareholders other than the relations of the 4th counter-petitioner." This was not given effect to. It would appear that this provision in the compromise was not made honestly with a view to its being implemented but rather as a make shift arrangement to get rid of the petitions for winding up. It would appear that this provision in the compromise was not made honestly with a view to its being implemented but rather as a make shift arrangement to get rid of the petitions for winding up. No impediment to the implementation of the compromise is pointed out and it is noteworthy that the arrangement proposed to be placed before a meeting of the members of the company does not contain a provision to this or similar effect which would tend to avoid opposition by the minority. Its absence is all the more significant in view of the fact that one of the grounds for ordering liquidation was the non-implementation of the aforesaid terms of the compromise. 4. After the expiry of the time for giving effect to the aforesaid term of the compromise, O.P. 3 of 1116 was filed by a member of the company in the District court, Nagercoil, for its being wound up compulsorily by the court. This was withdrawn by the erstwhile Travancore High Court for disposal in exercise of its extraordinary original jurisdiction. The learned Single Judge who dealt with the petition dismissed it. Against his order, an appeal was preferred before a Bench of two judges of the same Court which reversed it and directed the company to be wound up, being of the opinion that "it is just and equitable that the company should be wound up". The decision of the single judge as also that of the Bench are both reported in 1949 T.L.R. at pages 811 and 1067 respectively. At page 1080, in paragraph 9 of their judgment, the learned judges remark thus: "The fourth counter-petitioner has little regard for truth, scant respect for the statute and little regard for the authority of the court. It seems to us that this company has been a fraud on the statute for 42 years. It is a one-man company. The majority of the shares are in the hands of one individual and we are satisfied that the minority is being oppressively harassed by what is called the majority. The minority shows equal obstinancy and upon all accounts, the company cannot be said to have a domestic forum so essential for its existence. We think that the affairs of the company ought to be wound up". The minority shows equal obstinancy and upon all accounts, the company cannot be said to have a domestic forum so essential for its existence. We think that the affairs of the company ought to be wound up". Feeling the force of this observation and futility of any attempt to resuscitate the company without suggesting any means to cure the defect which proved fatal to its continuance, the petitioners propose a remedy in paragraph 30 of the petition. That remedy consists in the 12th petitioner's agreement to be excluded from holding any office in the company and by providing that the voting power shall be, one vote not per share-holder as it was, but per share. This is the only remedy proposed. The exclusion of the 12th petitioner from holding office cannot be considered to be an effective remedy because, the 12th petitioner can pull the string equally effectively from behind the screen. The suggested change in the voting power would not lead to any change in the ultimate result. The remedy suggested is shadowy and not substantial. If X persons hold the large majority of shares, they can easily out-vote the minority whether the voting power be per share-holder or per share because, upon the hypothesis they are numerically the majority shareholders and are the owners of the majority of the shares as well. It is thus obvious that the arrangement proposed does not afford a remedy for the evil which occasioned the order for winding up. If ever it is possible that there be an effective remedy, as the evil is chronic and inherent in the very situation, there should be an honest and sincere change of mind of the majority with which the minority is satisfied, in which event there may no opposition. It is not possible, in this case to find a means to resuscitate the company. The tyranny of the majority over a helpless minority was the ground of the liquidation. How can the same majority be trusted with the interests of the minority which they have been persistently disregarding without bonafides and for their own aggrandisement, in violation of the very foundation on which the rule of majority is based? We are not satisfied that the arrangement proposed deserves to be considered by a meeting of the members of the company. 5. We are not satisfied that the arrangement proposed deserves to be considered by a meeting of the members of the company. 5. Learned counsel for the petitioners relies upon the observation of Sir M.N. Sarkar at page 398 of his book on the Indian Companies Act, to the effect that "on the first application, the order asked for is usually made as a matter of course." This observation is not an authority for the position that the order asked for has to be made as a matter of course. It only shows that usually it is done. The reason is that usually an arrangement proposed would, prima facie, be such as to justify such an order. From what we have said above, it is clear that the contrary is the case here. There is the further fact that an earlier application for the identical relief made by some of the petitioners was dismissed by the District Court, Nagercoil, which order has become final, not having been appealed against. The present application is substantially, if not absolutely, the same. A circumstance that is relied upon by the petitioners is that the legal representatives of the petitioner on whose application the order for winding up was passed, support the application. This is of no moment at all. A proceeding to wind up a company can be started by the company, any member thereof, or any of its creditors. Any other person competent to maintain an application is entitled to appear at the hearing and, if the petition be not properly prosecuted, to prosecute it. An order for the winding up of a company operates in favour of all the creditors and of all the contributaries, as if made on the joint petition of a creditor and a contributary. (S. 167) The consent of the legal representatives of the petitioner for winding up, to the arrangement proposed, does not affect its consideration except as showing the consent of another member to the said arrangement. In the facts of this case, even this consent would appear to be not one given freely but one procured for the occasion. 6. The Register of shareholders of the company is not complete nor is it up to date. There appears to have been various transfers not recorded in the Register. In the facts of this case, even this consent would appear to be not one given freely but one procured for the occasion. 6. The Register of shareholders of the company is not complete nor is it up to date. There appears to have been various transfers not recorded in the Register. Learned Counsel for both sides agree that out of 192 share-holders, there are disputes as regards 102 and that those disputes have to be decided by the court to ascertain who the shareholders are. The result is that as things stand, more than 50 per cent of the members of the company are unascertained. A meeting of the members of the company is not, therefore feasible now. 7. The period of the license for manufacture of salt which was for 50 years will expire within 6 or 7 years. The petitioners say that the manufacture of salt is profitable and will continue to be profitable. They say further that the agreement entered into by the company with the Government provides for a renewal of the license upon the terms to the agreed upon with the Government. The provision may not mean much as any party can enter into an agreement with the Government. Even so the company. The company has no preferential right. No doubt the State will consider the fact that the company had been the prior licensee when deciding upon a new licence. That apart, the real asset of the company now consists in the right to manufacture salt for the remaining period of the license, besides the salt pans and other assets. The remaining period of the license gets gradually diminished by lapse of time and would become extinct in six or seven years. The business being admittedly now prosperous, a present sale of the assets would secure to the company a fair price. The liquidator would value the right to manufacture salt in the future at 15 lakhs of rupees and the petitioners at much more. From the annual revenue now derived, income tax at annas 2 in the rupee has to be paid and the net profit is only below one lakh. At that rate, for the remaining period, the profit that can be expected is only below six to seven lakhs of rupees that is, the estimated net income for the remaining period of the licence. At that rate, for the remaining period, the profit that can be expected is only below six to seven lakhs of rupees that is, the estimated net income for the remaining period of the licence. If the sale of the right of manufacture salt be for at least that amount, it would be to the advantage of the members as that sum can be availed of in presenti and being capital, will be free from any impost of incometax. 8. The salt pans had been leased under the orders of the Court by the official liquidator and the lease expired by the end of 1951. The sale has been fixed for the 16th of this month as ordered by this court. 9. There are various claims against the company, some of which are admitted and others disputed. Some suits have been filed to enforce some of the claims and other suits may follow. The aggregate of the claims would be to the tune of several lakhs of rupees. There is no method pointed out for liquidation of these liabilities except by sale of the assets. If the assets are not now sold by auction by the Official Liquidator as ordered, the result would be that they would be brought to sale by the creditors, some of whom are related to the 12th petitioner, with the almost sure prospect of such a sale turning out to be for an inadequate price. To postpone the sale until after determination of the 102 members of the company would be, in all likelihood, to render the sale impossible by the gradual diminution and ultimate determination of the remaining period of the licence which is one of the main assets of the company. 10. Learned counsel for the petitioners drew our attention to S.153 C of the Indian Companies Act introduced by Amending Act, LII of 1951 which provides for a remedy alternative to winding up even in cases where an order for winding up by court is applied for on the ground "that the affairs of the company are being conducted (b) in a manner oppressive to some part of the members" and sought to bring this case within the ambit of that provision. S.153 C applies to a stage before the order for winding up is passed by the Court and has no operation to a case where an order for winding up has been passed by the court long before, as is the case here. We may, however mention that had there been any bonafides in this application, the arrangement now proposed would have been placed before the court that was considering the question of winding up of the company and it would have considered the matter even in the absence of a statutory provision as the one contained in S.153 C, as the winding up was ordered under the last clause of S.162 which provides: "162. A company may be wound up by the Court: [vi]. if the Court is of opinion that it is just and equitable that the company should be wound up". If the company or any of its members satisfied the Court that the Company could be continued without the conduct of its business being subject to the complaint of its being oppressive to some part of the members, the court would not have found it just and equitable to order the winding up of the company. This was not done and the present belated application has only the unjustified opinion of its authors to support it. 11. We are, therefore of the opinion that the arrangement proposed does not deserve to be considered by a meeting of the members of the company under the circumstances of this case and that the application for ordering a meeting of the members in that behalf should be rejected with costs. We fix the advocate's fee at Rs. 200/- each for the respondent and for the liquidator's advocate. The amount shall be paid out of the assets in the hands of the liquidator. Dismissed. After this judgment was pronounced Mr. Ninan on behalf of the petitioners applies for a certificate under Art. 133 of the Constitution of India for leave to appeal to the Supreme Court. We are not satisfied that this is a fit case for granting such a certificate.