GOVINDA MENON, J.

This is an appeal against the judgment of Clark, J., dismissing an application by these shareholders of a private limited company known by the name of Sri Gopalakrishna Motor Transport Co., Ltd., for the winding-up of that company. The appellant was the first petitioner on the original side and he claimed to be the managing director of the motor transport company from 1st July, 194

6. The other two petitioners, who are respectively respondents 12 and 13 in this appeal, were a shareholder and a director of the same company. This joint stock company carried on business as a bus operator in and around Bezwada. The application before the learned Judge was under clause (vi) of Section 162 of the Indian Companies Act on the ground that it is just and equitable that the company should be wound up by Court. Various reasons are alleged in the statutory affidavit filed in support of the application, which in essence, come to this, that the directors, far from working in harmonious co-operation are at loggerheads with the result that the business is at a standstill on account of the deadlock. The gravamen of the charge is mainly against the first respondent as well as the second respondent. In answer to the application, the respondent filed separate affidavits denying the charges leveled against them and further stated that the company is carrying on business properly and that substantial profits have been earned in addition to acquiring valuable goodwill. It is further alleged that the appellant, during the time he was managing director, had misappropriated large sums of money belonging to the company and committed acts of misfeasance as a result of which the shareholders had to convene a special meeting wherein the second respondent was charges and counter charges and it is incumbent therfore on the court to find outr how far there is justification for any of themBefore we concern ourselves with the merits of the applicatin on which the learned trial Judge has bestowed considerable attention, it is necessary to advert to a matter of procedure in which, according to the learned counsel for the appellant, the trial Judge has erred and therefore the learned counsel urges, if we take a view different from that of the trial Court on that the matter of procedure , it would be necessary to remand the application for futher hearing and the disposal afresh

The point arises this way. The application for the widning up was filed on 29th August, 1947., and the hearing date was fixed as the 27th October, 1947. It was taken up the next day, i . e. 28th Ocotber , 1947, and on tht date respondent 1 to 9 in the appeal appeared by counsel and requested that time may be granted to them for filing counter -affidavits. This request was acceded to and the learned Judge directed that counter- affidavits should be filed within ten day adn thereafter the petition should beposted for hearing on 10th November, 1947., The intention of the learned Judge was, as is clear from his judgement that if the applicants wants tofile any reply affidavit they could do so before 10th November, 1947. There is no complaint that the appellant andthe other two petitoners on the orginal side did not have sufficient time to prepare of file their reply affidavit, Infact the reply afidavit was actually filed by the appellant on the 10th November itself., The respondents filed their counteraffidavits eariler than the tiem allowed Viz on the 5th November, 1947., and the case came into the daily cause list on MOnday the 10th November 1947., On account of other work, it was snot reached that day and as the next day ( Tuesday, 1th November) was a holiday , the case was taken up for heraring and that too just before the court rose for the day, on wednesday the 12th November , At that time the applicants counsel asked fro an djournment on the ground that the documents on which he relied to prove the case had not been typed.. The respondent opposed the application for adjournment whereupon the learned Judge ruled taht the hearing should proceed but the diffiuclt, if any, to the be explained on account of teh absence of tyeped copies ofthe document would be alleviated by probably looking into the manuscripts themselves. The hearing was resumed on Thursday, the 13th November, with the petitioners counsel reading the petition, the affidavit the countrer affidavit and the reply affidavite. In this court, the respondent counsel stated that on 13th November 1947., the applicants counsel reauested teh court for a further adjornment foir teh reaosn that the document were not only typed but the most of them had not been even transalted into English. This waas a reason quite differnt from what was given the plrevious day. In support of the application for adjournment. Since the learned Judges does not make any mention about this request. we do not intend to rely uopon this circumstance at all. As is seen from the judgment of the learned Judge, afterhaving read the petition, the affidavit, teh counter- affidavit and the reply affidavit, . the applicants counsel proceeded to make his submisions onteh facts set forth the in those pleading and also argued question of law. Thereafter towards the close of the working day on 13th November 1947., the applicants counsel proceeded to call oral evidence in support of the application by putting the apellant into the box to the give oral evidence. Thereupon the learned counssel for the respondent objected to the procedure maonly on the ground that the at stages no oral evidencne should be allowed to be let in. Then ensued arguement regardig the legal position as to what the practice is , or should be, about evidence should be allowed to be let in. Then ensued arguemtns regarding the legal position as to what the practice is , or should be , about adduing oral evidenc in winding up proceedings , on which the learned Judge was of opinion that it was conuntry to the setled practice of he court. in disposing of applications for the compulsory winding-up to allow oral evidenc eto be let in. He also held that the in teh circumstance of teh case , it ws improper to exerice it as that late stage. On this ruling by the learned Judge, the applicants counsel prayed thathe might be allowed to across examine the respondents on the averments contained in their counter affidavits but this application had to be refued because no notice of it had been given to the resplondetns counsel in order to enable him to see taht the his clients were present in court for the purpospe of being corss-examined. it was also represented to this Court that the respondent were not presetn in Court. The learnned Judge refused this request also, because it was made at a belated stage and not even before the proceedings commenced earlier. He was of the opinion that if the reqauewst had been made on the day when the case first came itto the cause list., i. e. on 10th NOvember, 1947., the requested adjournment would have been granted. The applicants counsel had perforce to proceed with the material contained in the affidavit teh counter affdavits and reply affidavit and supplement thefacts therein bny arguing legal questionThe question therefore arises as to the wherther the procedure adopted by the learned Judge in holding that it was against the settled practice of the court to allow oral evidence to be let in in winding up applications is rights; and secondly even, if such a practice was not commonly or unibversally accepted, whether in the circumstance of the case, the application for adjournment ought too have been allowed or not. The learned Judge states that he refused the adjournment application for cross-examination the respondent because they were not present in court but were in Bezwada and other places and since no earlier intimation of the applicants determination to cross-examine the respondents had been given it was not desirable or proper to adjourn the case at all. After consideration of the various provision of the rules made under th Indian Companies Act., Clark, J., decided that there was no provision in the Indian Companies Act or the rules made thereunder, for the taking of oral evidence in winding up application . he therefore sought guidance from the procedure followed in the High court of Justice in England and referred to Palmers Company precedent from which it was sen that in England oral testimony is permitted in support of petition only by permitting the cross-examination of deponents where there is a conflict of evidence or when the evidence of some person who decline to make an affidavit is required. As already stated, the application for cross-examination was not made at the earliest opportunity and so the learned Judge was not inclined to exercise his discretion in favour of the applicants

Mr. K. Krishnaswami Ayyangar, learned counsel for the appellant, strenuously urges that the procedure adopted by the learned Judge is wrong and unsupported by the precedents in this court. It is contended that an application for winding up is commenced by an original petition and that the procedure to be adopted in such matters is that laid down under the code of Civil Procedure under which statue oral evidence is admissible in original petitions. We have therefore, to consider in some detail the provision of the companies Act, and the rules as well as other statutes like the Code of Civil Procedure to find out what should be the procedure in the High Court of Justice in England. The rules under the Companies aCt in vogue in our court are framed under section 246 of the Act which lays done that the High Court may from time to time, make rules consistent with the Act and with the Code of Civil Procedure concerning the mode of proceedings to be had for winding up of a company in such court etc. What is laid down in this section is that the rules framed by this court should not be inconsistent with the provisions of the code of civil Procedure. Rule 6 of the rules under the Companies Act provides that the case not provided for by these rules nor by the rules of procedure laid down in the companies Act or in the code of Civil Procedure the practice and procedure of the High court of Justice England in matters relating o f companies shall be followed, so far as they applicable and not inconsistent with these rules or the Act Rule 8 sub rule (viii), provide that an application under section 166 of the companies act ( Section 162 of the present ACt ) for the winding up of the company shall be made by an original petition and rule 9 provides that the all application other than those mentioned in the different sub-rules to rule 8 arising under the companies act or under the Companies Rules shall be made by a Judges Summons. It is provide in rule 11 that the petition for winding up of the company shall be verified by the affidavit referring there to and made by the petitioner or one of the petitioner where there are more than one etc. such affidavit shall be filed along with the petition and shall be in form No. 1 There is a proviso to this rule which it is unnecessary to the refer to. It is unnecessary to discuss the meaning of he words " original petition " because it is the subject matter of a definition order 1, Rule 4 (9) , of the original Side Rules. Both the rules made under the Companies aCt as well as the Original Side Rules are Side Rules are silent with the respect to the question whether oral evidence can be let in to the substantiate an application for winding up. It is undisputed that the case of an original petition filed in a mofussil court under many other statues, e. g. the Indian Succession ACt., the Guardian and Wards ACt or the Lunacy Act., the party is entitles to let in evidence both oral and documentary to prove his case, section 141 of the Code of Civil Procedure lays down that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable, in all the proceedings in any court of Civil Jurisdiction. This is sufficient authority for the practice obtaining in the mofussil Court that in original petitions evidence , oral and documentary, can be adducedDoes the same practice appear to have been followed on the original side of this Court, or it is different from what is obtaining in the mofussil Courts, in try an issue raised by an original petition The learned counsel for the appellant invited our attention to the observation contained in Sabapathy Rao V Sabapathy Press Co., Ltd., where Spencer , O. C. J. in allowing an appeal against an order from the Original Side refusing to wind up a company has express the view that in that the case certain objection required further investigation and that the neither of the two persons against whose conduct criticisms have been leveled has " as yet gone into the witness box and attempted to explain the ugly facts appearing against them ." There is further observation also that the applicant there have proved sufficient facts to call upon the respondents to enter on their defence if the conduct of the affairs of the company is capable of an honest explanation. From these observation Mr. Krishnaswami Iyengar is able to show that in such matter on the Original Side oral evidence is not only permitted but becomes an obligation necessity in cases where sufficient facts have been shown by the applicant, In Palmers Company Precedents., fifteenth edition, Part II. at page 160, occurs following passage : -

" In winding-up proceedings, occasion sometimes arises for obtaining the oral evidence of witness. Thus, if there is a conflict of evidence of the affidavits, orders may be made for cross-examination. Further, upon a winding up petition the petitioner or respondent may require the evidence of some person who declines to make an affidavit; and in proceedings after winding up order, a creditor whose claims is disputed, or an alleged contributory, may desire to obtain such evidence., In such cases, the court will give liberty to examine the witness before the court itself or before the registrar or before the examiner of the court or special examiner........An order giving liberty to petitioner to examine witness who had refused to make an affidavit and directing them to attend in court, for examination, was made.........."

At page 169 of the same book , the subject relating to cross- examination on affidavits is deal with in the following term:-

" By Order XXXVIII, Rule 28 either party may give notice to cross examine a deponent who had made in affidavit and unless such dependent is produced for cross-examination his affidavit, cannot be used, unless the court gives special leave.......A witness cannot be compelled to attend under this rule; but under order XXXVIII, Rule 1, the court or a Judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit...... and under order XXXVIII Rule 20 any party or witness having made an affidavit, is bound on being served with a subpoena to attend before the examiner, or other officer of the court , or a special examiner, for examination. A subpoena cannot issue under rule 20 until an order has been obtained for the examination of the witness..."

From these observation it is sufficiently clear that both in England and in this country there is no inflexible rule or practice prohibiting the adducing of oral evidence or the cross- examination of the deponents of affidavit in matter like the present. We cannot agree with the learned Judge that such evidence is confined only to the only to the cross examination of the deponents of affidavits. Even the very first sentence from the Palmers Company Precedents quoted above suggests that some time occasion arises for obtaining oral evidence of witnesses and instances of such occasions are given thereafter. The correctness of the decision of the Division Bench of this court in Sabapathy Rao V Sabapathy Press Co., Ltd. was canvassed before their Lordships of the Judicial Committee in Ripon Press and Sugar Mills Co V Gopal Chetti. their Lordship did not disapprove of the directions contained in the judgment of Spencer O C J. , that the party should go into the witness box and explain the circumstances against him. If there had been compelling rule in England that in winding up proceedings the only kind of oral evidence that could be permitted is the cross examination of the deponents of he affidavit, were are of opinion of that the Lord Blanesburgh who delivered the judgment of their Lordship whould certainly have mentioned that, MOreover, Order XIX Rules 1 and 2 of of the Code of Civil Procedure permitting evidence to be given by proof of affidavit also allows the attendance of the dependents for the cross-examination., In addition, we have Rule 12 of Order XIV of Order XIV of the Original Side Rules, laying one that the Court, may, at anytime, direct they any person shall attend before the court for cross-examination upon the affidavit., In these or expenditure requires, is it open to the Judge trying winding up proceedings to allow oral evidenceWe have next to the consider whether the learned Judge exercised his discretion properly in refusing to allow oral evidence. The learned Judge expressed the opinion in the following emphatic terms : -

" Further in my view it would be most unsuitable to allow oral evidence beyond this in these cases., I am confident that to do so would only lead to the great waste of time . These were the grounds on which I refused to allow the petitioner to call oral evidence, a and as I have already observed, I should have refuse it in any event as the application was so belated The petitioner then asked that the might be allowed to cross-examination and I was informed by their counsel that none of them was present in court; they are in Bezwada or other place. Accordingly, I refused the application to cross-examine the respondent, or, to grant any adjournment adjournment for that the purpose."

We are in entire agreement with the learned Judge that the application was not only belated but was, in the circumstance, intended to retard and delay the progress of the application, the applicants had ample time to summons any witness whom they wanted to examine, or to take out subpoenas to the respondent for their attendance in court for cross-examination. Though the application was filed on 28th August, 1947, the date fixed or hearing was the 27th October , 1947.nearly two months after the filing of the application. No steps were taken to summon any witness during this period of two months . There was some discussion at the Bar as to the stage at which such an application should be made nd reference was made to rule 23 of the Rules framed under the Companies ACt. In the case in question, the first hearing must be deemed to be the when the application came in the initially on 28th October, 1947., and on that date at least when the learned Judge gave directions for the filling or counter -affidavit, the applicants ought to have intimated the court that oral evidence was necessary. Even if the applicants were unaware of the defense that was going to be raised by the respondents on 28th October 1947., they were perfectly aware of the allegation contained in the counter affidavits on 5th November 1947 . At least on that day notice should have been given to the respondents counsel asking for the attendance for the dependents to the counter affidavits in court for cross-examination. Even this was not done and it was only at the fag-end of the proceedings after the applicants counsel had made its submission both on facts na don law, that the desired the attendance of the respondent for being cross-examined. M. V., K. T. Chari, the learned counsel, for the company , brought to the notice of the court that the applicants had not taken the necessary steps, even for the translation of the document as is necessary under order IX , Rule 2 and 4, of the Original Side Rules ; nor was there any mention of the document intended to be filed in the statutory affidavit, to which the description of such documents was not appended as an annexure. IN view of this dilatory procedure adopted by the applicants, we are unable to hold that the learned Judge exercised his discretion in any manner than in a perfectly justifiable and proper wayThe learned counsel for the company, in an interesting argument, clearly brought out the distinction between the expedition required in winding up proceeding and the time usually allowed in the original petitions section 168 of the Indian Companies aCt provides that in a case a company is would up the proceedings shall be deemed to have commenced at the time of the presentation of the petition for the winding up i. e. the whole matter relates to an antecedent date, viz, the date when the application was filed. In view of the application of the result of the winding up proceedings retrospectively, it is very essential the there should be t he least possible delay in the disposal of winding up proceedings because, during the pendency of winding up proceedings if the company were to transact any business or to enter into contract them they will not be valid unless the court, in later proceedings, sanction such action, . The date of the commencement of the winding up proceedings is an important factor is discernible form various provisions of the Act viz section 156, 157, 227, 230, 232, 233, 23

4. Therefore it is that the both under purpose of getting a company wound up should be stated succinctly and without elaboration in the statutory affidavit which is considered to be prima facie evidence enabling the court to order the winding up of the company. If the contents of the statutory affidavit disclose a prima facie necessity for winding up then only it become obligatory for the respondent to let in any evidence contra., In re Chapel House Collier Co it is stated that the court will not as a rule order a petition to stand over for a lengthened period as it would not be just to the company. Expedition is the very essence of winding up proceedings and the interest not only of the company but an element of public policy in regard to commercial morality, also should be considered in the disposal of winding up petitions . It is in this background and with this object that the statutory affidavit is made prima facie evidence of the contends of the an application for the winding up. IN the in this background and with this object that the statutory affidavit is made prima facie evidence of the contends of an application for winding up. In this connection it is not only pertinent but highly instructive to refer to a decision reported in In re the London Fish Market a nd National Fishing Company Ltd. In that the case before chitty J., the petitioners asked the case to stand over in order to give them an opportunity for the cross- examine respondents witness on their affidavits. The petitioners admitted that they had no direct evidence except the statutory affidavit ( in the present case also there was no other evidence ) and desired to cross-examine the opposite side as to the extent and the nature of he business and as to the its bona -fide character; and they claimed that under there Chancery Procedure Act. 1852 section 40 ex debito justitiae the were entitled to cross examine. ON this Chitty, J., held the it was established practice that the courts have a discretion in allowing cross-examination in a case of winding up proceedings . the result of acceding to an application to allow the case to stand over would be to the learned Judge also, made a distinction between that the case and a case where an application was made for adjournment in the case of proceedings to strike a shareholders name off the register in which the rule was otherwise and said that the latter case the court would be very slow to refuse cross-examination as there was no special urgency in such proceedings. But in the case of a winding up petition the procedure was different as expedition was refused. we respectfully follow the observation of Chitty, J., and are of opinion that nothing can be said against the procedure adopted by Clark JMr. Krishnaswami Ayyangar, By relying upon various rules, orders and provisions of the Original Side Rules showing that it was not necessary to annex the document sought to be used at the hearing to the statutory affidavit, contended that it is not the law that document should be filed along with the petition or the affidavit, the appendix or annexure to an affidavit mentioning documents can relate only to such documents as are referred to for the purpose of elucidating the affidavit. We are inclined to agree within that whatever document are intended to be used at he hearing of the application need not necessarily be set forth as an appendix to the petition, but the in the circumstance of the present case, it was necessary that the existence of such documents ought to have been brought to the notice of the court and to the other is at least on the first hearing day., i. e. on 28th October 1947 AS we have already stated that the expeditious disposal of winding up petitions a matter of prime importance it is the duty of the parties to produce the necessary documentary evidence at the duty first hearing . the passage cited by him from Halsburys Law of England Hailsham Edition, Volume 5, page 563 para 904 showing that adjournments in such matter are frequent occurrence is of no help in the disposal of this petition. Our attention was invited to the decision of Leach C. J. and Lakshmana Rao., J., in O. S. A. No. 67 of 194

3. where the learned Judges set aside on order of Bell, J., setting on the Original Side in an application to rectify the register of a certain company by deleting therefrom the names of four persons as shareholder. Bell. J., on the Original Side , refused leave to cross-examine the persons who had shown affidavits in support of the respondent case and also did not allow oral evidence to be adduced. The court of Appeal disagreed with him and directed oral and documentary evidence to be adduced as tin an ordinary trial. We are unable to find any similarity between he circumstance mentioned in that the judgment and those the in the present case, AS is seen from the observation of Chitty, J., in In re the London Fish Market and National Fishing Companys register is different from the winding up proceedings. There is no urgency in the matter of the removal of shareholder or two from a companys register. The business of the company will not to the any way be affected ordinarily by the retention or deletion of one or two shareholder and such a case cannot ordinarily be tried on affidavit. The proper course certainly would be to frame issues and try them. we have already held that the in case of winding up the business of the company will be affected retrospectively, and, therefore, as far as possible avoidable delays should never creep in during the winding up proceedings at all. Moreover, the rectification of a register of a company is governed by section 38 of the Indian Companies Act., where the proviso to sun -clause (3) says that the court may direct an issue to be tried in which any question of law may be raised, so that is such matter the procedure, to be followed is more that obtaining in a suit than in an application. Therefore, we do not think that the unreported decision in O. S. A. No. 67 of 1943 is of any useful guidance for the disposal of the present caseThe appellants learned counsel was at great paints to show that the order 9, Rule 13, Civil Procedure Code, applies to the proceedings under the companies act for which purpose he cited the ruling in Hindustan Bank V Mehraj Din we see no ground for thinking that an ex parte order cannot be set aside if proper reasons are given to the satisfaction of the court. This case does not help us to the in any way in the deciding the present question regarding the justification for not allowing the application to stand over

We have next to turn to the merits of the application. IN this connection the leading case in Yenidje Tobacco Company Ltd., IN re was relied upon., especially the observation at pages 430 and 431 for the purpose of showing that the where there is an irreconcilable faction amongst the directors of a company it is always just and the equitable that the company should be wound be . The court of Appeal was dealing with a private limited company and Lord Cozens - Hardy, M. R. at page 430 observed as follows

" In those circumstances supposing it had been a private partnership, an ordinary partnership between the two people having equal shares, and there being no other provision to terminate it , what would have been the position I think it is quite clear under the law of partnership as has been asserted in this court of many years and is now laid down by the Partnership Act, that the state of things might he a ground for dissolution of the partnership for the reasons which are stated by Lord Lindley in his book in Partnership at page 567 in the passage which I will read and which I think is quite justified by the authorities to which he referred:

" Refusal of meet on matter of business continued quarreling, and such a stage of animosity as precludes all reasonable hope of reconciliation and friendly co-operation have been held sufficient to justify a dissolution. It is not necessary in order to include the court to interfere, to show personal rudeness on the part of one partner to the other, or even any gross misconduct as a partner. All that the is necessary is to satisfy the court that it is impossible for the partnership to place that confidence in each other which each has a right to expect and that the such impossibly has not been caused by the person seeking to take advantage of it."

Again at page 431 we have the following observation :-

" The matter does not stop there. It is proved that these two directors are not on speaking terms that the so-called meeting of the board of the directors have been almost a farce or comedy the director will not speck to each other on the board and some third person has to convey communication between them which ought to go directly from one to the other

It is possible to say that it is just and equitable that that the state of things should not be allowed to continue and that the court should not intervene and say this not what the parties contemplated by the foundation of the whole of the agreement that was made, that it is two would act as reasonable men with the reasonable courtesy and the two conduct in every ways towards each other and arbitration was only to be resorted to with the could not be determined in any other way. Certainly having regarded to the fact that the only two director will not speak to each other and no business which deserves the name of business in the affairs of the company can be carried on, I think the company should not be allowed to continue. I have treated it as the partnership. and under the Partnership Act of course the application for a dissolution would take the form of an action; but this is not a partnership strictly it is not a case in which it can be dissolve by action. But ought not precisely the same principles to apply to a case like this where in substance it is a partnership in the form or the guise of a private company It is a private company, and there is no was to put an end to the state of things which now exists except by means of a compulsory order. It has been urged upon us that the although it is admitted that the just and equitable clause is not to be limited to cases ejusdem generis , it has nevertheless been the held, according to the authorities not to apply except where the substratum of the company has gone or where there is a complete deadlock. Those are the two instances which are given, . but I should be very sorry so far as the individual opinion goes, to hold that they are strictly and the limited of the just and equitable clause as found in the Companies act. I think that in a case like this was are bound to say that the circumstance which would justify the winding up of a partnership between these two by action are circumstance which should induce the court to exercise its jurisdiction under the just and equitable clause and to wind up the company."Warrington . L. J. also refer to similar circumstances and the hold that where there are only two persons interested and there are no shareholders other than these and the two and where there are no means of overruling by the action of a general meeting of the shareholder the trouble which is occasioned by the quarrels of the two directors and shareholder the company ought to be wound up if there exists such a ground as would be sufficient for the dissolution of a private partnership at the suit of one of the partnership at the suit of one of the partners against the order. we are of the opinion that there is a wide divergence between the circumstances in that the case with those in the present one. Where two directors whould not even speak to each other and they constitute the entire board of director. the company has necessarily to be wound up . Here we have nine or ten directors solid taking one view as against the minority of three holding other views., If there are no other ground which necessitate the winding up other then irreconcilable differences of views between different groups in the directorate one of whom is in a large majority. It stands to reason that the directors one of whom is in a large majority it stands to reason that the observation of Lord Cozens - M R or Warrington, L J., can help us in deciding this case

The other case on which the learned counsel for the appellant placed reliance was in Loch V John Blackwood Ltd. Lord Shaw of Dunfermline delivering the judgment of the Judicial Committee observed as follows at page 788 :-

" It is undoubtedly true that the foundation of application for the winding up on the "just and equitable

" rule, there must lie a justifiable lack of confidence in the conduct and management of the companys affairs . But this lack of confidence must be grounded on conduct of the directors not in regard to their private life or affairs , but in regard to the companys business. Further more, the lack of confidence must spring not form dissatisfaction at being outvoted on the business affairs or on what is called the domestic policy of the company. On the other hand , whatever the lack of confidence is rested on a lack of probity in the conduct of the companys affairs then the former is justified by the latter, and it is under the statute just and equitable that the company be wound up."

But we are unable to hold that these cases can be of any help in coming to a conclusion of the allegations contained either in the affidavit or th counter affidavit filed before the learned Judge. Lack of probity on the part of the first respondent as well as the other directors is claimed to be at the root of the whole trouble and when the management suffer from the absence of such an elementary rule of good conduct it is urged that the company ought not to be allowed to function. From the counter affidavits we find that the except respondent 1 and 2 the rest of the directors cannot be said to be in any way involved in the active management of the company. The counter- affidavit of the 7th respondent as well as the 5th respondent show that they put the blame as much on the appellant as on the the first respondent himself. It is unnecessary for the disposal of this application to dilate upon the mode of the management followed by the first respondent. But even if his management has been unsatisfactory. the second respondent has already been elected managing directors. But this election is question on the ground that no meeting was actually held or if at all any such meeting was held it was held, it was illegal and against the rules. The learned Judge has carefully considered the various allegation made by the applicants and has refused to exercise his discretion to wind up the company because, in his opinion, the allegation are not sufficient to justify the winding up. Two things are clear, and they are that even during this period despite the action of a minority the company., has been earning profits and that it has accumulated something like a good will. Even so the applicants contended that the this incompatibility of good relation between the two rival faction in the directorate would necessitate the dissolution of the company so that the minority may get back the equivalent of its share moneyWith the regard to the allegations that the first respondent during his management omitted to have the accounts audited and obstructed the appellant in his efforts to do so and also that the withheld the companys account from the his co-directors and the shareholder we are inclined to agree with the learned Judges in his view that these allegations have not been satisfactorily proved. As regards the holding of the meetings. the learned Judge was not quite definite that the even took place but he went the on to say if it took place , it was entirely invalid. It is unnecessary for us to give the definite finding on that the aspect of the case. Having carefully persuade the statutory affidavit and the counter affidavit as well as reply affidavit, we are not the satisfied that the a prima facie case has been made out for the winding up of the company. It is unnecessary to discuss in any detail the charges and the counter charges for the reasons that in any event since that company has been working and earning profits for more than the year after the finding of the winding up petition it is certainly not just and the equitable that the same should be wound up. There is no proof that the circumstance in regard to the management of the company have deteriorated since the filing of the winding up application. That in a company one shareholder has a preponderating influence in its affairs by reasons of owning or controlling the large number of the shares is of itself no reasons for its winding up is to be found from the observations of the Judicial Committee in the appeal from the decision in Gopal Chetti V Ripon Press & Sugar Mill Co., Ltd. reported in Ripon Press & Sugar Mill Co V Gopal Chetti. The just and equitable clause in section 162 (vi) of the Indian Companies ACt though not the ejusdem generis with the previous sub clauses should not be invoked in cases where the only difficulty in the difference of view between the majority directorate and those representing the minority. Not only interest of the company it s directors and shareholders but that of the general public as in the present case where a motor transport company is sought to be wound up. should be considered before an order directing the winding up is madeThe learned Judge has found that the allegation regarding the misappropriation of a sum of Rs. 1, 000 by the first respondent was wholly unfounded as it was not even made in the petition and that such a charge was never made before. We find in unnecessary in the view we take now that the first respondent is no longer the managing director., to give any definite finding on this charge. In regard to the charge that the first respondent was withholding accounts from his codirectors and shareholders the learned JUdge had rejected the allegation made by the applicants and having the carefully gone through his judgment we see no reason to differ from his conclusion. The learned Judge further found that the affairs of the company were not in a bad financial conditions. we are satisfied that the respondents 2 to 10 before us cannot be held guilty of any of the allegation of mismanagement or other improper acts made against the first respondent especially since respondent are to be tarred with the same brush. In the counter affidavit of the seventh respondent who is a well educated Vysya gentleman having obtained a degree in the Andhra University we find sufficient material for coming to the conclusion that there is nothing wrong the present management of the company except that the appellant and the two other co-adjusters of his are holding views different from those held by the majority in relation to the details of management, . The counter -affidavit filed on behalf of the fifth respondent is also instructive. In para 8 the guardian of the 5th respondent states that her late husband, who was one of the directors was very much worried before his death over the conduct of the appellant in managing the company business. She also gives other reasons why the company should be allowed to continue to do business. Among the majority religious persuasions as well as separate communities among the Hindus themselves., There are four Kammas, two Mussalmans, three Vysyas and on e Goldsmith among the majority directors, whether as the applicant belongs to the Kamma caste. When there is such unanimity among the majority belonging to different communities, that the by itself is a reason , in the absence of any evidence of misappropriation or malversation of funds by the management to conclude that on account of difference of funds by the management with all reasons given by the learned Judge, it is unnecessary to state our reasons for agreeing with him at great length In these circumstance the order of the learned Judge cannot be justifiably taken objection to and the we confirm his judgmentThe learned Judge has, in the exercise of his judicial discretion, directed that the contesting respondents before him should be given four sets of cost. On the authority of Hasan Khaleeli V Varadarajulu Naidu Mr. Krishnaswami Ayyangar wants us to hold this that order is incorrect. The learned Chief Justice in that case held that the a creditor appearing in a winding up petition is not entitled to his costs as a matter of right. and that to entitled him to the costs he must show reasonable ground for appearing. He based his views on the observations contained in In re Hull and County Bank. But there is an observation at page 291 that the question of costs must be decided in the light of the facts of the particular case. As a general rule, the successful party is entitled to his cost sin his favour if the unsuccessful party is liable to have an order of costs against him. The principle on which the learned Judges of the court of appeal in Hasan Khaleeli V Varadarajulu Naidu disallowed costs was that the opposing respondent in that case were not the successful parties. we fail to see how this decision can be called in aid to set aside the discretionary order made by the learned judges in this case

The appeal is therefore dismissed with costs of respondent 1 to 11 one set

Appeal dismissed.