Judgment :- Radhakrishnan,J. The Cochin Malabar Estates and industries Ltd. the appellant in MFA.1160, 1159 AND 1161 of 2002 is a public limited company registered under the Indian Companies Act. Company is having its registered office at Cochin. The nominal capital of the company is Rs.5 crores divided into 5000, 12% cumulative preferential shares of Rs.100/- each, and 49,50,000 equity shares of Rs.10/- each. The amount of paid up capital is Rs.1,77,19,080/- divided into 17,71,908 equity shares of Rs.10/-each. The company is having three Rubber Estates and one Tea Estate apart from Aqua-culture Units at Goa and an office building at Bombay, of which one estate called the Kinalur Estate is having an extent of 987.27 hectares. The Chairman and Managing Director of the company is a share holder of about 30% of paid up shares. Life Insurance Corporation has got 18% shares and has a nominee in the Board of Directors. Bangur group is holding about 18% of the total shares of the company. Company petitioner holds only 50 shares in the respondent company which is less than 0.02% of the total shareholdings of the company. 2. The Company has to discharge some outstanding liabilities to the banking institutions such as Federal Bank, Bank of India, IDBI etc. The company has sufficient assets but not much cash reserve so as to pay off the liabilities. The Board of Directors were contemplating the sale of some of its assets so that substantial liabilities of the company could be wiped off. The financial institutions have been pressurizing the Board of Directors to discharge their liabilities. The Federal Bank has field OA.167/2000, OA.141/2000 before the Debt Recovery Tribunal, Ernakulam. Bank of India has also filed OA.210/2000 for recovery of debts due to them. In the wake of these petitions, the Board of Directors in their wisdom thought it would be better to sell some of the immovable properties so that the sale proceeds could be utilized for meeting its financial obligations towards the Banks/Financial Institutions for which necessary approval from the general body is statutorily required. The Board of Directors resolved to get the approval of the general body under section 293(1) of the Companies Act subject to applicable permissions, approvals, consents, if any required of any other authorities. The Board of Directors resolved to get the approval of the general body under section 293(1) of the Companies Act subject to applicable permissions, approvals, consents, if any required of any other authorities. Board of Directors of the Company then issued a notice dated 30.10.2001 for holding its 71st annual general meeting on 7.12.2001 for transacting various business including the following item which is extracted below: To consider and if thought fit to pass with or without modification the following resolution as an ordinary resolution. This resolution will be considered for passing by postal ballot method. Please refer to note (1) herein below:- “RESOLVED THAT, pursuant to section 293(1) and other applicable provisions of the Companies Act, 1956 the consent of the members of the company be and is here by accorded, subject to applicable permissions, approvals, consents, if any required of any other authorities, to the board of directors for sale, lease or dispose otherwise from time to time any part (including substantially the whole) or whole or any or all of the immovable properties (inclusive of any trees and structures standing thereon) of the company on such terms and conditions as may be thought fit and proper by the board of directors in its absolute discretion”. “RESOLVED FURTHER THAT, further consent of the members of the company be and is hereby further accorded to the board of directors for doing and performing from time to time for and on behalf of the company all such acts, deeds, matters and things as may be necessary and expedient in the matter of sale of any immovable properties as consented herein above.” In the notes attached to the notice item No.6 reads as follows: As you know that your company has to make payment of outstanding interest as well as repayment of the monies that the company borrowed from various banks and financial institutions. Besides these liabilities towards the banks and financial institutions, the company also has other substantial financial liabilities/obligations which are required to be honoured on urgent basis. In the present circumstances one of the feasible options, available to the company is to sell some of the assets (immovable properties) of the company and utilize the sale proceeds thereof in meeting its financial obligations particularly towards bank/financial institutions. In the present circumstances one of the feasible options, available to the company is to sell some of the assets (immovable properties) of the company and utilize the sale proceeds thereof in meeting its financial obligations particularly towards bank/financial institutions. Considering the fact that the company is engaged in business of plantation, sale of immovable properties on which the company has been carrying on plantation activities can be deemed to be sale of undertakings of the company. As per the provisions of Companies Act, 1956 sale of whole or substantially whole of the undertakings require approval of the members of the company. Your directors therefore thought it fit to hereby seek your approval for sale of any or whole of the immovable properties as mentioned in the resolution at serial No.6 under consideration. The consent of the members has been sought with a view to confer upon the board of directors the necessary authority enabling them to take appropriate decision for the purpose of sale/lease/assignment as and when the company receives an acceptable proposal/offer in respect of any of the immovable properties of the company. None of the directors of the company is in any way deemed to be concerned or interested in the resolution at serial No.6 of the notice under consideration. In the meanwhile, one of the share holders of the company by name Sushila Devi Bhatter had approached the Calcutta High Court to hold up the convening of general body meeting which was scheduled to be held on 7.12.2001. Interim order was passed by the Calcutta High Court on 5.12.2001. The Supreme Court vide its order in CA.464/02 dated 6.12.2001 stayed the order of the Calcutta High Court and ordered that the company would be at liberty to hold its annual general meeting which was scheduled to be held on 7.12.2001 or any other adjourned day. The Supreme Court opined that the High Court had exceeded its jurisdiction in granting interim injunction 48 hours before the holding of the Annual General Meeting at the instance of a shareholder who held only 1000 shares. Few other share holders of the company had also approached this court by filing CP.64/01 and moved an application against convening of the general body meeting of the company on 7.12.2001. Few other share holders of the company had also approached this court by filing CP.64/01 and moved an application against convening of the general body meeting of the company on 7.12.2001. Learned Company Court Judge of this Court granted interim order on 29.11.2001 but was vacated at the instance of the company on 6.12.2001 taking into consideration the undertaking given by the company that the entire properties would not be sold and the company would effect sale of such extent of properties that would be necessary for the discharge of the liabilities. An appeal was preferred before the Division Bench as MFA.360/02 against the order passed by the learned Company Judge in CA.337/01 in CP.64/01 which came up before the Division Bench consisting of one of us, K.S.Radhakrishnan, J.BENCH passed the following order. We find the steps now taken by the company is to sell away some of the properties which has got the sanction of the general body as well as the Board of Directors. It is for the general body and Board of Directors to decide what is best in the interest of the company. Appellants being shareholders of the company had their own say at the Annual General Meeting which resolved to take urgent steps by the company to sell away the properties to meet the pressing needs. Counsel for the appellant submitted that the company is selling away some of the estates which are income generating. This court sitting in this jurisdiction is not justified in substituting its wisdom to that of the Annual General Meeting or the Board of Directors. We find sufficient safeguards have been made in the order stating that the company should effect sale of such extent of properties that would be necessary for the discharge of the liabilities. In such circumstances, we find no reason to entertain this appeal. It is accordingly dismissed.” Attempts were also made by some of the share holders to see that resolution passed in the general body be not given effect to by the Board of Directors but without any success. 3. The general body meeting was accordingly convened on 7.12.01 and accorded sanction under section 293(1)(a) to the Board of Directors to take steps for sale of the immovable property of the company to utilize the sale proceeds for reducing the financial liabilities of the company. 3. The general body meeting was accordingly convened on 7.12.01 and accorded sanction under section 293(1)(a) to the Board of Directors to take steps for sale of the immovable property of the company to utilize the sale proceeds for reducing the financial liabilities of the company. The Board of Directors has therefore authority to take appropriate decision for the purpose of sale when acceptable proposal is received. The Board of Directors on the strength of the consent given by the annual general body issued a public notice dated 2.4.2002 for the sale of its estate called Kinalur Estate admeasuring approximately 987.27 hectares. Sealed bids were invited along with a pay order of a sum equivalent to 15% of the bid value. One Paresh G.Sangani then filed a suit before the Sub Court, Kochi as OS.249/01 so as to prevent the Board from considering the resolution under section 293(1)(a) and from taking steps fro sale of the properties. No orders have been granted by the Sub Court. The company petitioner herein has also filed OS.261/01 before Sub Court, Kochi on 14.12.2001 praying that he company would sell the plaint schedule property only after due publication and after getting direction from Sub Court, Kochi. 4. Company petitioner then after moving the Sub Court, Kochi has filed company petition 22/02 before this Court under section 433(e), 433(f), 439 and 443 of the Indian Companies Act 1956 read with Rule 9 of the Companies (Court) Rules, 1959 seeking a prayer for winding up of the company as per section 433(e) and 433(f) of the Companies Act 1956. Prayer for appointment of a provision liquidator was also made. Company application was filed on 23.4.2002 contending that the very resolution to authorize the Board of Directors for sale of the whole or all of the immovable properties, on such terms and conditions in the absolute discretion of the Board of Directors is a fraudulent device to sell away the assets and undertaking of the company and that the resolution dated 7.12.2001 was passed by manipulations and by fraudulent means in the postal ballot itself. Petitioner submitted that the said resolution is ultravires. Illegal and invalid. Petitioner also submitted that illegalities, fraud, misappropriation and misfeasance committed by the Chairman and Managing Director and his nominees they has caused irretrievable loss and damages to him. Petitioner submitted that the said resolution is ultravires. Illegal and invalid. Petitioner also submitted that illegalities, fraud, misappropriation and misfeasance committed by the Chairman and Managing Director and his nominees they has caused irretrievable loss and damages to him. Petitioner contended that the facts and circumstances fo the case would warrant and justify the winding up of the company in the interest of the creditors, shareholders and the public. Further it was also stated if the Board of Directors are allowed to proceed with the sale as per resolution dated 7.12.2001 with a hidden agenda even if the entire assets of the company are sold there would be only liabilities left to be cleared. 5. On the basis of the above mentioned averments company petition was moved under section 433(e) and 433(f) of the Companies Act. Company petitioner also filed company application No.120 of 2002 seeking stay of all further proceedings to sell the properties of the company as per public notices dated 2.4.2002 and 13.4.2002 including the receiving of bids as published and also to appoint a provisional liquidator or to appoint existing Joint Receivers appointed by the Debt Recovery Tribunal, Kochi as the provisional liquidators to receive the bids, open the bids and do all other formalities of the sale. 6. Company then filed an affidavit on 12.6.2002 stating that the company petition is misconceived, dishonest and not maintainable and is an abuse of the process of this Court and therefore liable to be dismissed with costs. Further it was stated that the petitioner has suppressed several material facts from this Court and has come to this Court with unclean hands. Further it was also pointed out that the grievances raised in the petition were in the nature of matters pertaining to section 397 and 398 of the Companies Act, 1956 for which the petitioner has other alternative remedies. Company brought to the knowledge of the Company Court that the petitioner holds only 50 shares in the respondent company which is less than 0.02% of the total shareholding of the company. It was further stated that the majority of the shareholders of the company have passed a resolution authorizing the Board of Directors to sell a whole or part of the companies land and the Board is only implementing the decision of the general body. It was further stated that the majority of the shareholders of the company have passed a resolution authorizing the Board of Directors to sell a whole or part of the companies land and the Board is only implementing the decision of the general body. Further the Debt Recovery Tribunal, Ernakulam on an application made by the Federal Bank has appointed the Managing Director of the Company and the Chief Manager of the Federal Bank as Joint Receivers in respect of the respondent company and they have prepared a scheme for the revival of the company that envisages the sale of some of its assets in order to reduce its debt burden and outstanding liabilities and thereafter to restructure and revive the company with the remaining available funds. Further it was stated the decision was taken by the Board of Directors of the Company which included a representative of the Life Insurance Corporation of India as well which is an 18% shareholder of the company. The company also pointed out it has no intention whatsoever to sell any property of the company without obtaining prior approval of the Debt Recovery Tribunal. Petitioner, a solitary shareholder, has got any grievance he has to move the Company Law Board under Section 397 and 398 of the Companies Act 1956 after getting sufficient majority as provided in the Companies Act. The annual general body was convened on 7.12.2001 after following all the procedures and giving notice to all the shareholders including the petitioner. Company also filed a reply affidavit to the company application 120/02 incorporating the same averments. When CA.120/02 came up for hearing the company petitioner filed an affidavit stating that the brother-in-law of the petitioner by name T.P.Abdulla who is now in Gulf Countries instructed him to file the affidavit expressing his desire to purchase the properties notified for sale for a total consideration of Rs.22 crores. The offer made in the name of T.P.Abdulla was also directed to be considered. Court also appointed an advocate Commissioner to oversee the proceedings and to be present at the time of opening the bids. That order was also challenged by petitioner by filing appeal, MFA.653/02, but without any success. 7. Petitioner then filed application No.139 of 2002 on 13.6.2002 to bring bids quoted including that of N.K.Mohammed Ali also for scrutiny by the court. That order was also challenged by petitioner by filing appeal, MFA.653/02, but without any success. 7. Petitioner then filed application No.139 of 2002 on 13.6.2002 to bring bids quoted including that of N.K.Mohammed Ali also for scrutiny by the court. Affidavit was filed by the company in that petition setting as follows: At the outset I submit that the present application ex-facie shows that the petitioner is not acting bonafide as a shareholder of the company, but is merely the front for some third party who has a vested interest in insuring that the sale of the companies land for the purposes of paying of the liabilities of the company is blocked. It was pointed out in view of the urgency to generate funds for repayment to banks and financial institutions, as well as to the workers it is not possible to apportion the said property and sell it in small lots. In the affidavit company also stated as follows: The Board of Directors of the Company are entrusted with the responsibility of managing and running the company and in taking all decisions pertaining thereto and consequently the persons best qualified to make a decision in this regard decided the interest of the company.” It was also pointed out that the petitioner in the present petition is nothing but a stooge in the hands of N.K.Muhammed Ali and is trying to misuse and abuse the process of this court. An affidavit was then filed by the petitioner on 19.6.2002 stating that the petitioner with T.P.Abdullah and P.Mohammed Sherig Haji are associates with regard to the purchase of the Kinalur Estate published for sale as per Annexure B and C public notices”. An affidavit was also filed by one N.K.Mohammed Ali on 19.6.2002 wherein it is stated that he is the power of attorney holder of one T.P.Abdullah, his brother in law who is now in Gulf Countires has instructed him to file affidavit on behalf of him. It was stated that Abdullah is an associate of the company petitioner, is prepared to purchase the Kinalur Estate for an amount of Rs.22 crores without any encumbrances or charges on the property. 8. Learned Company Judge in CA.120/02 in CP.22/02 directed the company to consider the bid offered by T.P.Abdulla also. It was stated that Abdullah is an associate of the company petitioner, is prepared to purchase the Kinalur Estate for an amount of Rs.22 crores without any encumbrances or charges on the property. 8. Learned Company Judge in CA.120/02 in CP.22/02 directed the company to consider the bid offered by T.P.Abdulla also. Direction was also given to the company to intimate the time and date for opening of the bids to the Advocate Commissioner. Another C.A.139/02 was also filed by the company petitioner seeking a direction to the company to receive the bid made by N.K.Mohammed Ali also. Company then filed objection to the company application 139/02 stating that the company petitioner is not acting bonafide as a shareholder of the company, but is merely acting at the instance of third parties who have vested interest in ensuring sale of the company’s estate. Company prayed for the dismissal of the application with compensatory cost. 9. Company petitioner filed another application No.185/02 seeking direction to fix the date of the opening of the bids and to do all which is necessary for accepting the bids and for executing agreement. Commissioner appointed at the instance of the petitioner submitted two reports dated 22.7.2002 and 6.8.2002 before the Company Court. Second report was placed at the meeting held at Hotel Trident, Cochin in which Board of Directors and representative of the LIC had participated. There were only two bids, one by P.K.C.Ahammedkutty and another by N.K.Mohammad Ali and T.P.Abdulla. Joint bid submitted by Mohammed Ali and T.P.Abdulla for Rs.27,03,33,333/- was supported by Abdul Khader, the company petitioner. One P.K.C.Ahammedkutty offered Rs.9,60,00,000/- and also agreed that he would pay off the entire liabilities of the company. 10. The Board of Directors examined the offers in its meeting held on 7.9.2002 resolved to sell the estate to P.K.C.Ahamadkutty. Reason which weighed with the Board of Directors to do so was that the offer made by P.K.C.Ahammedkutty was more favourable to the company since he had agreed to discharge the entire liabilities. If the liabilities are taken up the bid made by PKC Ahammedkutty would come to more than Rs.31.10 crores. Under such circumstance offer made by P.K.C.Ahammedkutty was accepted by the Board of Directors in the meeting held on 7.9.2002. The representative of the LIC who is also a Director of the company also agreed with the proposal. If the liabilities are taken up the bid made by PKC Ahammedkutty would come to more than Rs.31.10 crores. Under such circumstance offer made by P.K.C.Ahammedkutty was accepted by the Board of Directors in the meeting held on 7.9.2002. The representative of the LIC who is also a Director of the company also agreed with the proposal. Paragraph 14 of the said resolution is extracted below. Mr.Jimmy Gazdar, Chairman, placed before the meeting the two bids that were received by the company in response to the public notice given by the company in connection with the sale of the company’s property at Kinalur Estate. Mr.Jimmy Gazdar requested Mr.Ajay Vazirani, Advocate and Solicitor present at the meeting to give the details about the bids to the meeting. Mr.Ajay Vazirani informed the Board that in a Company Petition filed by Mr.P.V.Abdul Khader, one Mr.T.P.Abdulla along with Mr.N.K.Mohammed Ali had appraoached the Court to be permitted to put up a bid for purchase of the Kinalur Estate. Counsel appearing for the Company consented that Mr.T.P.Abdullah and Mr.N.K.Mohammed Ali be permitted to put in their bid. At the Board Meeting held on the August 2002, the bids were opened in the presence of Mr.K.T.Sankaran, a Commissioner appointed by the Hon’ble Kerala High Court to oversee the opening of the bids. Subsequent to the opening of the bids, the Board had certain queries for the bidders who were present at the time of opening of the bids. Replies to the queries were submitted by the bidders. Mr.T.P.Abdullah and Mr.N.K.Mohammed Ali being of the opinion that the Company was delaying the finalisation of the bids and in turn holding of the Board Meeting made an application to the Hon’ble Kerala High Court that the Hon’ble Court direct the Company to hold a Board Meeting and at the Meeting grant the bid to them as in their opinion, the bid of Mr.P.K.C.Ahammadkutty was invalid. Two other applications were also made namely (i) to join Mr.N.K.Mohammed Ali as a party to the company petition (ii) to make Mr.P.K.C.Ahammadkutty a party to the company petition. A Board Meeting was being called to decide upon the issue of finalisation of the bids, the management being embroiled in litigation thought if fit to seek a legal opinion on the issue. An opinion was sought from His Lordship, the Hon’ble Mr.Chief Justice of India Mr.M.H.Kania (Retd.). A Board Meeting was being called to decide upon the issue of finalisation of the bids, the management being embroiled in litigation thought if fit to seek a legal opinion on the issue. An opinion was sought from His Lordship, the Hon’ble Mr.Chief Justice of India Mr.M.H.Kania (Retd.). A copy of the opinion was circulated for the perusal of the Directors present. The directors present read and considered the opinion given by Mr.Justice M.H.Kania (Retd.) After discussions at length, Mr.Rajendra Dalal expressed that the bid given by Mr.P.K.C.Ahamadkutty was more favourable to the Company and proposed that the bid given by Mr.P.K.C.Ahammadkutty be accepted by the company for sale of the company’s property at Kinalur to him. Mr.Jimmy Gazdar agreed with the views expressed by Mr.Rajendra Dalal, pointing out that this bid for a sum of Rs.31.10 Crores is the highest of the two bids. Mr.B.Rangarajan agreed to the sale subject to the entire sale proceeds/consideration aggregating Rs.31.10 Crores (Rs.9.60 Crores and Rs.21.50 Crores as per explanation given by Mr.P.K.C.Ahammadkutty) should be received by the Company and the Company should settle the dues with banks and financial institutions. Mr.Hemant Bangur voted against the said Resolution. Company petitioner then filed CA.295/02 in CP.22/02 praying for a direction to set aside the resolution of the Board of Directors dated 7.9.02 accepting the bid of P.K.C.Ahammedkutty and seeking a declaration that N.K.Mohammedali be declared as the successful bidder. An affidavit was filed on behalf of the company explaining the reasons why the bid of P.K.C.Mohammedkutty was accepted. Relevant portion of the same reads as follows: I submit and that the company has chosen a buyer who has undertaken to pay of the liabilities due to the banks with which the said land is mortgaged. This will straightway reduce the liabilities of the company by a sum of approximately Rs.22 crores and will leave the company with another 9.60 crores in its hands to use for the process of reviving the company. I do not admit that the said P.K.C. Ahammadkutty is not worth Rs.one crore as alleged and I put the petitioner to the strict proof thereof. I submit that the petitioners unsubstantiated allegation in this regard must be dismissed with the contempt its deserves. . . . . . . I submit that dues to the bank are approximately in the region of Rs.22 crores. I submit that the petitioners unsubstantiated allegation in this regard must be dismissed with the contempt its deserves. . . . . . . I submit that dues to the bank are approximately in the region of Rs.22 crores. I deny that the liability of the bank cannot be ascertained at this stage. I submit that the Ahamadkutty by his letter dated 7.9.02 addressed to the company has confirmed that he will deposit with the company the sum of Rs.31.10 crores for meeting the banks’ liabilities and as and by way of payment for the said land. I therefore deny that there is any uncertainty whatsoever in the position. I deny that the company would be the loser in accepting the bid of Ahamadkutty or that anybody aside from the petitioner is indulging in lucky dip. I verily believe that one of the petitioners two bidders viz. T.P.Abdulla is a Non-Resident Indian and it therefore not entitled to purchase agricultural land in India. ... The company as per the resolution passed in a meeting of its Board of Directors held on 7th September 2002 has resolved to sell the land to the said P.K.C.Ahamadkutty. I respectfully submit that this Hon’ble Court should not set aside the resolution of the Board of Directors dated 7th September 2002. N.K.Mohammedali the power of attorney holder of T.P.Abdulla has also filed company application 298 of 2002 in C.P.22/02 challenging the decision of the Board of Directors accepting the bid of P.K.C.Ahamadkutty and seeking a declaration that N.K.Mohammedali would be the successful bidder. Company filed a detailed affidavit to the CA.298/02 reiterating the reasons why they have accepted the bid of P.K.C.Ahammedkutty. It is stated in the affidavit as follows: I submit that sale of the companies property is a commercial decision, which a required to be taken by the Board of Directors of the company and not by the court. I deny that any modus operandi was adopted by the company or that the acceptance of adopted by the company or that the acceptance of the bid of the said P.K.C.Ahammadkutty by the company is illegal or that it cannot be sustained. I deny that the resolution of the Board of Directors passed on 7th September 2002 accepting the bid of the said Ahammadkutty should be set aside or that it should be declared that the deponent is a successful bidder. . . I deny that the resolution of the Board of Directors passed on 7th September 2002 accepting the bid of the said Ahammadkutty should be set aside or that it should be declared that the deponent is a successful bidder. . . I verily believe that the said T.P.Abdulla on whose behalf the deponent has put in the bid is a Non-Resident India, who is not entitled by law to buy agricultural land in India. Counter affidavit was filed by the company in C.A.295 of 2002 in CP.22/02 contending that the company petition itself should be dismissed with costs and so also the company application 295/02. Maintainability of filing CA.298/02 by N.K.Mohammedali was also questioned by the company. 11. Learned Company Judge heard CA.295, 298 and 313 of 2002 and passed a common order. Learned Judge held that CP.22/02 is maintainable but question whether it could be admitted was not examined. Learned Judge interfered with the resolution of the Board of Directors dated 7.9.02 and held that the amount quoted by N.K.Mohammedali and T.P.Abdulla would come to Rs.31.6 crores. CA.313 of 2002 was dismissed and CA.295/02 and 298/02 were allowed. The company petitioner also filed CA.331/02 to appoint a provisional liquidator or any other officer with power to supervise and complete the sale. Another application was also filed by the shareholder Abdul Khader seeking a direction to restrain the company and Ahammadkutty from taking any further steps with regard to Kinalur Estate except for day to day functioning of Estate and also restraining the company from committing any waste. Order of status quo was passed by Company Judge on the said petition. CA.No.373 of 2002 was also filed by N.K.Mohammedali restraining the company and Ahammadkutty from taking any further steps with regard to Kinalur Estate except for day-to-day running/functioning of the Estate. 12. Learned Senior Counsel appearing for the Company Sri.P.Chitambaram submitted the company petition 22/02 is not liable to be admitted either under section 433(e) of under section 433(f) of the Companies Act. Counsel submitted without admitting the company petition and issuing notice on admission several company applications were entertained by the Company Judge and reliefs granted in a petition which is not liable to be admitted under section 433(e) or 433(f) of the Act. Counsel submitted without admitting the company petition and issuing notice on admission several company applications were entertained by the Company Judge and reliefs granted in a petition which is not liable to be admitted under section 433(e) or 433(f) of the Act. Petitioner has not adduced any evidence to show that the company is unable to pay its debts and therefore the company is to be wound up. Counsel also submitted there is no allegation or commercial insolvency which is absolutely necessary for maintaining a petition under section 433(e) of the Act. Counsel placed reliance on the decisions in Pradeshiva Industrial & Investment Corporation of U.P.v. North India petrochemicals Ltd. and another (1994) 3 SCC 348, Alliance Credit and Investments Ltd. v. Khaitan Hostombe Spineis Ltd. 95 Co. Cases 436 (All), Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. 97 Co. Cases 683 (SC) and V.V.Krishna Iyer Sons v. New Era Manufacturing Co. Ltd. 35 Co Cases 410 (Ker). 13. Counsel also submitted learned Company Judge failed to advert to the procedure of hearing a winding up petition mandated by section 443 read with Rules 95 and 96. Counsel submitted learned Company Judge was obliged to either dismiss the petition or admit the petition and fix a date for hearing. Various interim orders passed by the learned Company Judge in a company petition which is not liable to be admitted are illegal and without jurisdiction. Counsel also placed reliance on the decisions of the Apex Court in The National Conduits (P) Ltd. v. S.S.Arora, AIR 1968 SC 279, Pothen v. Hindustan Trading Corporation (P) Ltd. and others, 37 Co Cases 266(Ker), 98 Co Cases 644(Ker). Counsel also submitted the learned Company Judge has also misunderstood the scope of Rule 9. The inherent powers of the court do not extend to overriding the Act or the Rules or the Articles of Association of the company. Counsel made reference to a decision of the Bombay High Court in Kishore Y.Patel and others v. Patel Engineering Co. Ltd. and others, AIR 1992 Bom 114. Counsel also submitted the company petition at the instance of the share holder who is having 50 shares is not maintainable and is not liable to be admitted and the various company applications filed at his instance are also not maintainable. Ltd. and others, AIR 1992 Bom 114. Counsel also submitted the company petition at the instance of the share holder who is having 50 shares is not maintainable and is not liable to be admitted and the various company applications filed at his instance are also not maintainable. Counsel also submitted Company Judge was not justified in directing the company to accept the bid made by T.P.Abdullah and N.K.Muhammedali in preference to P.K.C.Ahammadkutty at the instance of an ordinary shareholder. The Board of Directors has taken the decision in the best interest of the company and its creditors after obtaining necessary permission from the general body as per section 293(1), counsel submitted, the decision taken by the Board of Directors is a matter which comes within the internal management and the principle applicable is private law and not public law. Counsel also elaborated the reasons why the Board of Directors which includes representative of LIC accepted the bid of P.K.C.Muhammadkutty. Various provisions of the Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000 were also taken note of by the Board of Directors before accepting the bid of P.K.C.Muhammedkutty. Counsel placed reliance on Regulation 4 of the Regulations. Counsel submitted P.K.C.Muhmmedkutty had agreed that he was prepared to take over and pay the liabilities and also agreed to pay Rs.9,60,00,000/-, on the other hand, the offer made by T.P.Abdulla comes to Rs.27,03,33,333/-. Board of Directors after getting expert legal opinion accepted the bid of P.K.C.Ahammedkutty whose offer is Rs.31.10 crores which is highest of the two bids. Representative of the LIC also agreed to the sale subject to the entire sale proceeds/consideration aggregating Rs.31.10 Crores (Rs.9.60 Crores and Rs.21.50 Crores as per explanation given by Mr.P.K.C.Ahammadkutty) should be received by the company and company should settle the dues with banks and financial institutions. 14. Senior counsel appearing for the company petitioner Sri.T.P.Kelu Nambiar supported the findings of the learned Company Judge. Counsel referring to Section 443(c) submitted that since all the applications were entertained by Company Judge during admission stage, on hearing of winding up petition the court could pass any interim order that it thinks fit. Counsel submitted that the arguments addressed before the learned Company Judge were with regard to the maintainability of the company application and not admissibility of CP.22/02. Counsel submitted that the arguments addressed before the learned Company Judge were with regard to the maintainability of the company application and not admissibility of CP.22/02. Counsel submitted for maintaining a company petition under section 433(e) there need only be a prima facie allegation regarding the inability of the company to pay its debts. Counsel submitted company petition would lie under section 433(e) and 433(f) as well. Counsel submitted, bona fide, commercial insolvency etc. are all aspects which should go into the consideration as to whether the winding up petition is to be admitted or dismissed and not at the stage of maintainability of the petition. Senior counsel Sri.S.V.S.Iyer highlighted the procedural irregularity in accepting the bid of P.K.C.Ahammedkutty. Sri.Philip Antony Chacko who appeared for the company petitioner also took us through various averments in the company petition and submitted that company petition is maintainable and is liable to be admitted. Counsel submitted he has preferred petition for the best interest of the shareholders. Sri.K.Ramakumar appearing for some of the shareholders. Opposed the sale of the estate. Counsel submitted rights of the shareholders have not been protected and taken into consideration neither by the shareholders nor by the directors. Sri.Raghuraj, counsel for the appellant in MFA.1158/02 supported the counsel for the company. 15. The Cochin Malabar Estates and Industries Ltd. is having three rubber estates, one tea estate apart from Aqua-culture unites at Goa and an office building at Bombay. One of the estates owned by the company is called Kinalur Estate. The balance sheet produced before us as on 31st March 2001 would indicate that the company has got fixed assets worth Rs.64,73,39,154/-. Secured and unsecured loans would constitute only Rs.29,83,29,620/-. Current liabilities would come to Rs.5,39,71,546/-. The balance sheet would indicate that the assets of the company far exceeds the liabilities. Like many companies, this company had also availed of loans from various financial institutions. The price of rubber had gone down considerably for the last few years and therefore the company could not repay the loan availed of from the various financial institutions. Due to delay in repaying the amount some of the banking institutions approached the Debt Recovery Tribunal. The Federal Bank filed OA.141/2000 and 167/2000. An interlocutory application was filed by the industrial Development Bank of India in OA.141/2000 before the Debt Recovery Tribunal. Original Application No.210/01 was also filed by Bank of India. Due to delay in repaying the amount some of the banking institutions approached the Debt Recovery Tribunal. The Federal Bank filed OA.141/2000 and 167/2000. An interlocutory application was filed by the industrial Development Bank of India in OA.141/2000 before the Debt Recovery Tribunal. Original Application No.210/01 was also filed by Bank of India. Board of Directors are vested with the powers of management and administration of the company. Board of Directors after examining all the pros and corns of the situation and also various feasible options took a policy decision that in the present situation of the company unless and until some of the assets (immovable properties) of the company are sold and utilize the sale proceeds thereof for meeting its financial obligations particularly towards banks and financial institutions it would not be possible to salvage the company. 16. The Board of Directors as a working organ of the company are entrusted with the management of the company by the general body for taking various decisions so as to safeguard the interests of the shareholders, creditors ect. Board of Directors could effect sale of the immovable property only with the sanction of the general body under section 293(1) of the Companies Act and sanction was accorded by the general body in its meeting on 7.12.2001. The General Body of the company examined the decision taken by the Board of Directors and felt in the facts and circumstances the only feasible option was to sell some of the immovable properties and utilize the sale proceeds for meeting the financial obligations particularly to the banks and financial institutions. One necessary sanction has been obtained from the General Body and a business decision has been taken by the Board of Directors, ordinary shareholder has no power to question the same. 17. A Shareholder could express his views in the general body meeting. The company is a legal entity and it can act only through its Directors. Solitary shareholder of the company has approached the Company Court so as to wind up the company under section 433(e) and (f) of the Companies Act stating that the company is unable to pay its debts and that it is just and equitable to wind up the company while the creditors are not interested in the winding up of the company. We fail to see how a fully paid up shareholder could seek winding up of the company when the creditors have approached Debt Recovery Tribunal for the recovery of their debts. Creditors of the company have not been parties to the winding up proceedings. Shareholder has no case that the company is commercially insolvent. Facts would reveal what the shareholder’s intention is only to see that the company’s assets be purchased by his associates one T.P.Abdulla and N.K.Mohammdali. 18. The company petitioner has no case that he is a contributory. A petition under section 433 would normally be filed only by a creditor. Company petitioner is not a creditor. He has no liability as a contributory. Contributory can maintain a petition under section 433 only if he has made up a special case of winding up of the company. We fail to see how the present company petition would lie under section 433(e) of the Companies Act. Apart form bald averment that the company is unable to pay its debts absolutely no details have been furnished by the solitary shareholder. This Court in Pothen v. Hindustan Trading Corporation (P) Ltd. and others. 37 Co. Cases 266 held even in the case of a contributory in order to maintain a petition under section 433 he would show special reasons. Question as to whether a fully paid up shareholder could move a winding up petition was also examined by this Court in V.V.Krishna Iyer Sons v. New Era Manufacturing Co. Ltd. 135 Co. Cases 410. The court held as follows: That a fully paid up shareholder even of an insolvent company is entitled to bring an application for its winding up is quite clear, this being expressly provided by statute. But the fact remains that ordinarily he has nothing to lose by the continuance of the company and nothing to gain by its winding up, or to borrow the language of the English decisions, that he has no interest in a winding up ... The court is not readily moved to exercise its discretion by a person who is not really aggrieved; nor is it readily persuaded by such a person that it is just and equitable that a company should be wound up. The court is not readily moved to exercise its discretion by a person who is not really aggrieved; nor is it readily persuaded by such a person that it is just and equitable that a company should be wound up. A man who has no apparent axe to grind usually has a hidden and dangerous axe to sharpen, and decisions have recognized, in the context of a winding up sought by a fully paid up shareholder of an insolvent company, that “when a person asks for an order without any tangible interest in the result there is ordinarily good ground for thinking that the application is for an ulterior purpose and not a bona fide application”. Learned Judge has also in the same decision held as follows: A fully paid up shareholder of an insolvent company who has really no interest in a winding up must make out a very special case indeed, and the ground of the company’s inability to pay its debts is virtually unavailable to him. In this connection, it may be noted that, so far as the statute is concerned, a creditor is entitled to bring a winding up petition on any of the grounds mentioned in clauses (a) to (f) of section 433 of the Act. Supposing a creditor of a solvent company were to bring a petition under one or the other of these clauses, the court would, I take it, straight away ask him, “what should the discretion under the section be exercised might not be exactly in the same position, for, while a creditor has no interest in the company as such but only in his debt, a shareholder has an interest in the company notwithstanding its insolvency. Yet, unless special reasons are shown, much the same question can be put to him, and, if he has any genuine grievance to redress, I should think that, in the generality of cases, he would have some adequate remedy other than a winding up so that sub section (2) of section 443 would come into play. With regard to the powers of a shareholder to bring an action against a company, reference may also be made to the judgment of the Division Bench of the Madras High Court in Nagappa v. Madras Race Club, AIR (38) 1951 Mad. 831 (2). 19. With regard to the powers of a shareholder to bring an action against a company, reference may also be made to the judgment of the Division Bench of the Madras High Court in Nagappa v. Madras Race Club, AIR (38) 1951 Mad. 831 (2). 19. Learned Company Judge without admitting the company petition issued various orders in the company applications, which has got far reaching consequences so far as the company and its creditors, who have moved the Debt Recovery tribunal are concerned. The Company Judge may in appropriate case, under section 443 of the Companies Act on hearing the admissibility of the company petition, make any interim order that it thinks fit. Company Judge in the instant case has been passing various orders at the instance of a solitary shareholder effectively sitting in judgment over various business decisions taken by the Board of Directors. If the Board of Directors is managing the affairs of the company or Board of Directors are conducting business prejudicial to the interest of the shareholders they could always move the Company Law Board after complying the formalities laid down in the Companies Act. Company Court should show circumspection while dealing with an application filed by an ordinary shareholder. Shareholder could always ventilate his grievance before various forums. Detailed procedures have been laid down in section 379 to 409 of the Companies Act for relief against oppression of minority and mismanagement of the company affairs, enabling the shareholder to approach the Company Law Board. The Company Law Board could exercise its powers under section 388B to 388E. Further, section 237 also empowers the Department of Company Affairs to effectively interfere even on a mere complaint by a shareholder if there is evidence to justify the interference in cases where fraud, mismanagement or serious irregularities in the affairs of a company are raised. Company petitioner has never chosen to file any application before the Company Law Board or before any forum alleging fraud or mismanagement, but approached this Court with a winding up petition. The attempt of the petitioner is malafide and actuated by ulterior motive. 20. Company has been repeatedly contending that the company petition and company applications are not liable to be admitted or entertained. In fact application No.313/02 was specifically filed by the company before the learned Company Judge stating that the company petition is not liable to be admitted. The attempt of the petitioner is malafide and actuated by ulterior motive. 20. Company has been repeatedly contending that the company petition and company applications are not liable to be admitted or entertained. In fact application No.313/02 was specifically filed by the company before the learned Company Judge stating that the company petition is not liable to be admitted. Learned Company Judge however, failed to consider the contention with regard to the admissibility of the company petition. In the facts and circumstances of the case we have no hesitation to say that the company petition is not liable to be admitted at the instance of a solitary shareholder for the reasons we have elaborately dealt with in this judgment and we are inclined to allow CA.No.313/02 filed by the company. 21. The learned Company Judge has committed an error in substituting his judgment to that of the Board of Directors. The Board of Directors in its meeting held on 7.9.2002 examined the various bids received by them and took a business decision that the offer made by PKC Ahammedkutty be accepted in the best interest of the company. Going by the minutes of the meeting held on 7.9.02 it is evident that the company had obtained legal opinion from the former Chief Justice of India. The decision taken by the company to accept the bid of PKC Ahammedkutty was acceptable to Mr.B.Rangarajan, representative of the Life Insurance Corporation of India. PKC Ahammedkutty had undertaken to discharge the entire liabilities of the company. The offer of PKC Ahammedkutty was found beneficial to the company since over and above Rs.9.60 crores, he had undertaken to discharge the entire liabilities. Board of Directors also felt that if the other offer is accepted it may violate the provisions of Foreign Exchange Management Act, 1999 as well as Regulation 4 of the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000 which prohibits an NRI to make investments in India in any firm, any company or partnership firm engaged in agriculture or plantation sector. Regulation 3 says that a person resident outside India who is a citizen of India may acquire any immovable property in India other than agricultural/plantation/farm house. This is also one of the additional reasons which weighed with the Board of Directors in not accepting the bid of Abdulla, who is away in Gulf and also of Mohammedali. Regulation 3 says that a person resident outside India who is a citizen of India may acquire any immovable property in India other than agricultural/plantation/farm house. This is also one of the additional reasons which weighed with the Board of Directors in not accepting the bid of Abdulla, who is away in Gulf and also of Mohammedali. 22. The Board of Directors has specifically stated in the public notice that the sale would be confirmed subject to further orders of the Debt Recovery Tribunal wherein creditors have filed applications. On the application made by the Federal Bank, the Debt Recovery Tribunal has appointed the Managing Director of the company and Chief Manager of the Bank as joint receivers and they have prepared a scheme for the revival of the company and envisaged sale of some of the immovable properties. In other words, the decisions taken by the Board of Directors to sell the property to PKC Ahammedkutty would be subject to further direction by the Debt Recovery Tribunal. Creditors may or may not accept the proposal made by the Board of Directors to accept the bid of PKC Ahammedkutty. Creditors would accept the same only if it is beneficial to them and only if their liabilities are discharged by PKC Ahammedkutty. The views of the creditors were not heard by the Company Judge since they were not justified in interfering with the decision taken by the Board of Directors on 7.9.2002 even after assuring that the sale would be given effect to only after getting further orders from the Debt Recovery Tribunal. 23. The Company Judge would normally start with the presumption that the Directors are acting in the best interest of the company since they have been entrusted with the task of managing the company by the general body. The judges are ill-equipped to make business judgments. The Court cannot as a rule adjudicate upon the commercial judgment of the Board of Directors. If they act prejudicial to the interest of a minority shareholder there is ample provision in the Companies Act to redress their grievance. A public limited company will have thousands of shareholders each will have his own interests. Their views can be voiced at the annual general meeting or to move the Company Law Board or the Central Government on Company Affairs if situation warranted. A public limited company will have thousands of shareholders each will have his own interests. Their views can be voiced at the annual general meeting or to move the Company Law Board or the Central Government on Company Affairs if situation warranted. Company Judge is not expected to resolve the dispute raised by the shareholders and substitute his wisdom to that of the Board of Directors. In Kanika Mukherjee v. Rameshwar Dayal Dubey (1966) 1 C.L.J. 65 a Division Bench of Calcutta High Court held where the affairs of a company were manipulated as to deprive of a share holder of his sizable amount of right shares, the remedy open to him is before the Company Law Board and not before High Court. The Company Court would not as a general rule interfere with internal management of a company. It is for the Board of Directors to decide the manner in which the affairs of the company are to be carried on. Courts determine questions of law and not questions of business management. Company Court shall not interfere with the lawful decision of the Board of Directors of a company. Even a commercial misjudgment would not amount to oppression or mismanagement. The Board of Directors may err, every error cannot be a ground for action and the Company Court is not a correctional court for all errors. Shareholder has to yield to majority rule and the decision of the Board of Directors who are also invariable be shareholders. Shareholder cannot come to the Company Court with the fanciful idea that he could move the machinery of the Company Court to set right what he thinks correct and what the Board of Directors does is wrong. Shareholder if could procure the aid of the court in each and every action taken by the Board of Directors it would lead to endless litigation and pin down the company within the four walls of a company court. The Company Court should shut its doors to them and deny entry. 24. A Division Bench of our High Court in Rajendra Menon v. Cochin Stock Exchange Ltd. (1990) 69 Com. Cases 256 held that the Company Court cannot exercise jurisdiction merely because it is a matter which to a company. A Division Bench of the Kerala High Court while dealing with Section 397 held in Palghat Exporting Co. Ltd. v. T.V.Chandran (1994) 79 Com. Cases 256 held that the Company Court cannot exercise jurisdiction merely because it is a matter which to a company. A Division Bench of the Kerala High Court while dealing with Section 397 held in Palghat Exporting Co. Ltd. v. T.V.Chandran (1994) 79 Com. Cases 213 that when the court finds that a petition did not reflect a representative action but rather a mathod of pressurizing the Directors to pay what the petitioner thought was owing to him is an abuse of the process of the court. We are therefore of the considered view that the learned Company Judge was not justified in interfering with the decision taken by the Board of Directors on 7.9.2002 even after assuring that the sale would be given effect to only after getting further orders from the Debt Recovery Tribunal where creditors applications are pending consideration. We have no hesitation to say that the company petition and the applications made by him are noting but an abuse of process of court. A solitary shareholder had the company under at his tenderhooks for nearly one year, delaying the proceedings initiated by the creditors before the Debt Recovery Tribunal and dragging company to the Company Court. Company was repeatedly pleading before the Company Judge that they would take further steps only after obtaining orders from the Debt Recovery Tribunal where the creditors applications are pending consideration. This company petition as well as company applications filed by the company petitioner and third parties are with ulterior motives, and in our view nothing but an abuse of process of this court. Pendency of this company petition has only delayed the proceedings before the Debt Recovery Tribunal causing considerable financial loss to the company. We therefore allow all these appeals and dismiss the company petition with costs of Rs.25,000/- to be paid by the company petitioner to the company. Deposit made by the applicant in company application No.298/02 be refunded on their request.