1999 (8) TMI 863 - HC - Companies Law

Company when deemed unable to pay its debts, Admission of petition and directions as to advertisement

Summary

Issues Involved:
1. Procedural irregularities in the winding-up order.
2. Necessity of advertisement before winding up.
3. Consideration of the correctness of the BIFR/AAIFR opinion.
4. Compliance with Companies (Court) Rules.
5. High Court's discretion in winding up based on BIFR/AAIFR opinion.

Detailed Analysis:

1. Procedural Irregularities in the Winding-Up Order:
The appellant company contended that the winding-up order dated August 3, 1994, was procedurally irregular. The primary argument was that the company, its shareholders, creditors, and contributors were not afforded a proper hearing, and no advertisement was published before the winding-up order. This was deemed a violation of procedural norms, as established by the Companies (Court) Rules.

2. Necessity of Advertisement Before Winding Up:
The court deliberated on whether the company judge could order the winding up of the company without directing an advertisement as required under Rule 96 of the Companies (Court) Rules. The rules specify distinct steps: presentation of the winding-up application, admission of the petition, direction for advertisement, and hearing. The advertisement is crucial as it informs creditors, contributories, and other interested parties, allowing them to signify their intentions regarding the winding-up petition.

3. Consideration of the Correctness of the BIFR/AAIFR Opinion:
The court examined whether the learned company judge could order winding up based solely on the BIFR/AAIFR opinion without independently assessing its correctness. It was highlighted that while the opinion of BIFR/AAIFR holds significant weight, the High Court is not precluded from examining its correctness. This ensures that the court does not abdicate its function of determining the necessity of winding up.

4. Compliance with Companies (Court) Rules:
The judgment emphasized the importance of adhering to the procedural requirements under the Companies (Court) Rules. The rules mandate that the company should be given notice and an opportunity to oppose the winding-up petition. Furthermore, the advertisement of the petition is a procedural necessity to ensure that all interested parties are informed and can participate in the proceedings.

5. High Court's Discretion in Winding Up Based on BIFR/AAIFR Opinion:
The court reiterated that even with a BIFR/AAIFR opinion recommending winding up, the High Court retains the discretion to decide whether to proceed with winding up. The court must consider whether it is just and equitable to wind up the company, taking into account the views of creditors and contributories and any other relevant factors. The judgment referenced the Supreme Court's stance that the High Court should not treat the BIFR/AAIFR opinion as conclusive but should make an independent determination.

Conclusion:
The court set aside the order dated August 3, 1994, directing the winding up of the company. It was directed that the matter be treated as a prima facie opinion for the admission of the company petition. The case was remanded for further proceedings, including the issuance of directions for advertisement and the filing of affidavits. The parties were given liberty to file their affidavits and apply for interim reliefs before the company judge.