1975 (5) TMI 51 - HC - Companies Law

Issues Involved:
1. Application for amendment under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure.
2. Clarification and incorporation of antecedent facts in the winding-up petition.
3. Opposition to the amendment on grounds of lack of power to amend, bona fide dispute, and alleged mala fide intent.
4. Applicability of Rule 6 of the Companies (Court) Rules, 1959.
5. Precedents and legal principles governing amendments in winding-up petitions.

Issue-wise Detailed Analysis:

1. Application for Amendment:
The petitioner, M/s. Bhagat Industrial Corporation Ltd., filed an application under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, to amend the winding-up petition (C.P. No. 70 of 1972). The petitioner sought to clarify the initial amounts deposited with the respondent-company, M/s. Ego Metal Works Private Ltd., and the subsequent renewals of the fixed deposit receipts (FDRs).

2. Clarification and Incorporation of Antecedent Facts:
The petitioner aimed to explain that the sums of Rs. 49,600 and Rs. 1,24,000 mentioned in the winding-up petition were renewals of the original deposits of Rs. 40,000 and Rs. 1,00,000, respectively. The petitioner provided details of the initial deposits, the renewals, and the interest accrued. The petitioner emphasized that the amendment was sought to clarify the position and bring out the real matters in issue between the parties.

3. Opposition to the Amendment:
The respondent-company opposed the amendment on several grounds, including:
- There being no power to amend a winding-up petition.
- The necessity for the petitioner to withdraw the existing petition and file a fresh one.
- The bona fide dispute over the claim and the potential immunity from liability due to the lapse of time.
- The alleged mala fide intent of the petitioner to take control over the respondent-company under a scheme of arrangement.

4. Applicability of Rule 6 of the Companies (Court) Rules, 1959:
The court considered Rule 6 of the Companies (Court) Rules, 1959, which allows the practice and procedure of the court and the provisions of the Code of Civil Procedure to apply to all proceedings under the Companies Act. The court noted that Rule 6 is wide enough to enable a court to order an amendment even on a winding-up petition if warranted by the circumstances.

5. Precedents and Legal Principles:
The court referred to several precedents and legal principles governing amendments:
- In Cox & Kings (Agents) Ltd. v. Phoenix Oil Co. (India) Ltd., it was observed that unnecessary amendments should not be allowed if they only clarify existing claims.
- In A.K. Gupta and Sons v. Damodar Valley Corporation, it was established that amendments should not set up a new cause of action or new case, but can present a different or additional approach to existing facts.
- In Shanti Kumar R. Canji v. Home Insurance Co. of New York, it was reiterated that amendments taking away a defense of immunity due to limitation should not be allowed, but exceptions exist for presenting additional approaches to facts already stated.

The court concluded that the proposed amendment sought to introduce an additional approach to the facts already stated, without adding a new cause of action or new case. The amendment was deemed necessary for determining the real questions in controversy between the parties and did not prejudice the respondent-company.

Conclusion:
The court allowed the amendment application, directing the petitioner to file an amended petition and the respondent to file a further reply if necessary. The amendment was allowed subject to the payment of costs of Rs. 250, with the main petition to be listed on 18th July 1975. The court emphasized that the amendment was in the interest of justice and necessary for clarifying the real matters in issue.

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