2001 (12) TMI 822 - HC - Companies Law

Summary

Issues Involved:
1. Resolution for institution of winding up proceedings.
2. Authorization of Mr. S.L. Jain to initiate the winding up petition.
3. Signature of the duly constituted attorney or authorized person on the company petition.
4. Affidavit filed in support of the winding up petition.

Detailed Analysis:

Issue 1: Resolution for Institution of Winding Up Proceedings
The appellant-company contended that there was no resolution for the institution of winding up proceedings against the respondent-company by the petitioning company at the time of filing the petition, rendering it non-maintainable. The learned company judge, after considering the resolution dated 28-6-2000, concluded that the irregularity in the verification of the affidavit and want of signature were curable irregularities. The petitioning-creditor later passed a clarificatory resolution dated 12-10-2001, confirming the authorization for the winding up proceedings. The court held that the resolution dated 28-6-2000, read with the resolution dated 12-10-2001, sufficiently authorized the filing of the winding up petition.

Issue 2: Authorization of Mr. S.L. Jain to Initiate the Winding Up Petition
The appellant-company argued that Mr. S.L. Jain, who filed the affidavit in support of the petition, was not authorized to initiate the winding up petition. The court noted that the resolution dated 28-6-2000, authorized Mr. S.L. Jain to represent the company in any legal proceedings. The subsequent resolution dated 12-10-2001, clarified that this authority included the initiation of winding up proceedings. The court concluded that the resolutions provided sufficient authorization for Mr. S.L. Jain to initiate the winding up petition.

Issue 3: Signature of the Duly Constituted Attorney or Authorized Person on the Company Petition
The appellant-company contended that the company petition was not signed by a duly constituted attorney or authorized person, as required by the relevant rules. The court noted that the petition was signed by the advocate and verified by Mr. S.L. Jain, the constituted attorney of the petitioning-creditor. The learned company judge permitted the petitioning-creditor to cure the technical irregularity by signing the petition above the verification clause. The court upheld this decision, stating that it was a procedural matter that could be rectified.

Issue 4: Affidavit Filed in Support of the Winding Up Petition
The appellant-company argued that the affidavit filed in support of the winding up petition was not in accordance with rule 21 of the Company (Court) Rules, 1959. The original verification was found to be technically defective. The learned company judge allowed the petitioning-creditor to cure the defect by filing a fresh affidavit within fifteen days. The court held that the defect in the verification was a technical irregularity and that the petitioning-creditor should be given an opportunity to rectify it. The court cited several precedents supporting the view that such defects are curable and do not render the petition non-maintainable.

Conclusion:
The court dismissed the appeal, rejecting all contentions raised by the appellant-company. It held that the orders passed by the learned company judge were procedural and that the winding up petition was maintainable. The court emphasized that technical irregularities in the verification of affidavits and signatures could be cured, and the petitioning-creditor had appropriately rectified these issues. The winding up petition was allowed to proceed on its merits before the learned company judge. The request for a stay of the judgment was also rejected.