1971 (8) TMI 146 - HC - Companies Law

Summary

Issues:
1. Verification and signing of the petition under sections 397 and 398 of the Companies Act 1956.
2. Compliance with the prescribed form for filing a petition under sections 397 and 398 of the Act.

Analysis:

Issue 1: Verification and signing of the petition:
The petition in question was filed under sections 397 and 398 of the Companies Act 1956. The company raised preliminary objections regarding the petition not being signed and verified as per the requirements of the Code of Civil Procedure. However, the petition was accompanied by the affidavit of one of the petitioners, satisfying the verification requirement under rule 21 of the Companies (Court) Rules, 1959. The affidavit affirmed the truthfulness of the facts stated in the petition. The petition was also signed by the advocate representing the petitioners, in accordance with a valid vakalatnama. The judge ruled that the petition had been duly signed and verified as required by law, and that the verification need not follow the exact procedure outlined in the Civil Procedure Code. Therefore, the first issue was decided in favor of the petitioners.

Issue 2: Compliance with prescribed form:
The second objection raised was regarding the prescribed form for filing a petition under sections 397 and 398 of the Act. The company argued that the petition did not adhere to Form No. 43, which requires a schedule with the names and addresses of members consenting to the petition. However, the judge noted that the petition was filed directly by the petitioners without claiming consent from other members. As per the note under the prescribed form, attaching a schedule is necessary only when the petition is filed on behalf of other members without their direct involvement. Since the petitioners themselves filed the petition, the need for a schedule did not arise. The judge also dismissed the argument that signed letters of consent from the petitioners were required, as the advocate had signed on their behalf with no objection to the authenticity of the signatures. Consequently, the second issue was also decided against the respondents.

In conclusion, both preliminary objections raised by the company were rejected, and costs were awarded to the petitioners. The case was scheduled to proceed for the framing of issues on merits on a later date.