2007 (11) TMI 410 - HC - Companies Law

Winding up application - whether leave of the Court shall be obtained for the admission of the petition - Held that - The provisions do not, require that the matter should be placed before the Court in the first instance for acceptance before examining the merits of the case for admission and/or directing advertisement thereof. The necessity of placing the matter for acceptance is only to indicate the returnable date on which the matter will proceed for admission. That is a ministerial work which can be carried out even by the Registry. In other words, on institution and registration of the company petition, the matter is required to be considered by the Court for admission and to grant leave to advertise the petition. Granting of returnable date for admission of the petition after its institution and registration so that the matter would proceed before the Court for admission or for grant of leave to advertise, is a matter which can be left to the Company Registrar, being ministerial work. That will also ensure that the matters do not remain pending in the registry for want of acceptance. Place this matter for admission on 13-12-2007. The petitioner shall take steps to give intimation to the respondent-company in this behalf, if so advised.

Summary

Issues:
1. Interpretation of rules 97 and 96 of the Companies (Court) Rules, 1959 regarding the admission of company petitions.
2. Requirement of obtaining leave of the Court before admitting a petition for winding up a company.
3. Procedure for assigning a returnable date for admission of a company petition.

Analysis:
1. The judgment addresses the interpretation of rules 97 and 96 of the Companies (Court) Rules, 1959 concerning the admission of company petitions. It highlights the need for obtaining the leave of the Court before admitting a petition for winding up a company. The judge emphasizes that the matter should be considered for admission and granting leave to advertise the petition without the necessity of first placing it before the Court for acceptance. This procedural step is deemed as ministerial work that can be handled by the Company Registrar to prevent delays in the registry.

2. The judgment clarifies that according to section 439(8) of the Companies Act, before admitting a petition for winding up a company presented by a contingent or prospective creditor, the Court's leave must be obtained. The Court can grant leave if it finds a prima facie case for winding up the company and reasonable security for costs is provided. The judge's analysis underscores the importance of following the legal requirements for obtaining leave before proceeding with the admission and advertisement of the petition.

3. Regarding the procedure for assigning a returnable date for admission of a company petition, the judgment instructs the office to process the matter promptly and designate a fixed returnable date for the petition to come up for admission or for granting leave to advertise. This directive aims to streamline the process and ensure that matters do not linger in the registry due to delays in acceptance. By setting a specific returnable date upon registration of the petition, the court aims to expedite the admission process and avoid unnecessary delays.

In conclusion, the judgment provides a comprehensive analysis of the procedural requirements for admitting company petitions, obtaining the Court's leave for winding up a company, and assigning returnable dates for admission. It emphasizes the importance of following the legal provisions diligently to facilitate the efficient processing of company petitions in compliance with the Companies Act and relevant court rules.