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TMI Blog1968 (7) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the issues framed, an order was passed on March 21, 1968, granting leave, under Order XI, rule 2, Civil Procedure Code, to deliver these interrogatories upon the company. Before granting leave, the case of each side had to be carefully examined. It was found that matters arising in the case covered a fairly wide field. The issues were also reframed on March 20, 1968. Among the issues, as refrained, was a separate issue on the broad question whether it was just and equitable to wind up the company, apart from the issue whether the company was commercially insolvent. There was also an issue on the question whether the petition is mala fide and liable to be dismissed for this reason. After the service of the interrogatories upon the company, a twenty-page application was filed on March 27, 1968, on behalf of the company in which general objections were taken to all the interrogatories and objections were also taken to each of the interrogatories. The application purports to be made under Order XI, rule 7, Civil Procedure Code. The prayer was that the whole set of interrogatories may be struck out on the ground that they have been exhibited unreasonably and are vexatious, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levancy, by the demands of decency and propriety, and by the even wider basic requirements of fair play, justice and equity. For example, although one of the objects of interrogatories is to ascertain an adversary's case, yet they cannot be permitted to be used by a party merely to obtain a disclosure beforehand of evidence supporting the adversary's case as this would give one party an unfair advantage over the other. The object of Order XI, Civil Procedure Code, is more akin to that of Order X, Civil Procedure Code, than to that of cross-examination. Order XI, Civil Procedure Code, itself indiates the limits within which the power to require information through interrogatories ought to be confined. Order XI, rule 1, Civil Procedure Code, contains the proviso that "interrogatories which do not relate to any matters in question in the suit shall be deemed to be irrelevant notwithstanding that they might be admissible on the oral cross-examination of a witness". There is then the right given to an objector under Order XT, rule 6, Civil Procedure Code, to refuse to answer an interrogatory on the ground that it is "scandalous or irrelevant or not exhibited bona fide for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The interrogatories have to be answered by means of an affidavit filed within ten days or within such other time as the court may allow under Order XI, rule 8, Civil Procedure Code. Order XI, rule 6, Civil Procedure Code, is intended to cover objection which may be taken in the affidavit to be filed in answer to the interrogatories. As the time allowed for objections under Order XI rule 6, Civil Procedure Code, is longer than the time permissible under Order XI, rule 7, Civil Procedure Code, it is possible to contend that the stage for objections under Order XI, rule 7, Civil Procedure Code, comes before the stage of objections under Order XI, rule 6, Civil Procedure Code. But, in my opinion, the correct position is that the two rules are to a certain extent overlapping and must be read together. Within seven days of the service of the interrogatories objections can be taken both under Order XI, rule 6, Civil Procedure Code, as well as under Order XI, rule 7, Civil Procedure Code. The language of the two rules, viewed together, indicates that Order XI, rule 6, is intended for objections to particular interrogatories whereas Order XI, rule 7, Civil Procedure Code, is meant for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the petitioner praying for an order to compel the company and its representatives mentioned in the application to answer the questions contained in the interrogatories. This application also does not specify which question should be answered by which party mentioned in the application. Be that as it may, the objection on behalf of the company is that this application is misconceived. The stand taken by Mr. Brij Lal Gupta, on behalf of the company, is that the company has not omitted to answer any question. Indeed, he stated that the company is prepared to answer any question if the court so directs and that the stage for an application under Order XI, rule 11, Civil Procedure Cot e, would arise only when an affidavit mentioned in Order XI, rule 8, Civil Procedure Code, does not contain answers to the interrogatories. The contention is that the stage of an affidavit in answer to the interrogatories under Order XI, rule 7, Civil Procedure Code, has not been disposed of. But I find that Order XI, rule 8, Civil Procedure Code, does not automatically and without an order of the court give an objector time beyond ten days to object to particular interrogatories or to the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be necessary. It is, however, not the practice of a court dealing with winding up petitions in this country o allow either oral evidence or other methods available for adduction of evidence under the Code of Civil Procedure as a matter of right. This is evident from the view taken in In re Sulekha Works Ltd. AIR 1965 Cal. 98, 138. , where it is observed : "...there is no inflexible rule or practice prohibiting the adducing of oral evidence or cross-examination in winding up applications. Where necessity suggests or experience requires it is open to the judge to allow oral evidence. But where the application for calling oral evidence is not only belated but is intended to retard and delay the progress of the winding up application, the oral evidence should be refused as expedition in winding up is absolutely necessary". In other words, although the rule of practice is there, it is not inflexible. Thus, the Calcutta High Court, like this court, also decides winding up petitions generally on affidavits and permits oral evidence only in exceptional cases. I may mention that the Companies (Court) Rules, 1959, contain the procedure for the hearing of the winding up petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in dealing with the nature of a winding up proceeding and the procedure to be followed on winding up petitions is to indicate that the whole paraphernalia of powers and procedural devices contained in the Civil Procedure Code is not available to a party automatically in proceedings on winding up petitions which are different from ordinary suits. In suitable cases the power to serve interrogatories can certainly be utilised usefully to shorten proceedings. In the instant case I find that a very large number of questions have been framed and decisions on the individual objections to each one of the ninety-four questions framed will, instead of shortening proceedings, considerably lengthen the proceedings. A number of questions, although covered by the assertions made in the petition or the counter-affidavit, appear to be such that they could be more properly asked upon cross-examination of witnesses. After going through the affidavits filed, as already indicated, I find that there is ample material on the record to enable a satisfactory decision on each of the issues framed on the grounds taken. A winding up petition also differs from an ordinary civil suit inasmuch as the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statutory provisions such as the Industries Development and Regulation Act, 1951. I may also observe that this petition is by a party whose claim as a creditor is still in dispute. The petitioner became a creditor because its first appeal was allowed by this court so that a decree for a sum of Rs. 3,03,992 passed in favour of the company and against the petitioner by the Additional Civil Judge of Kanpur was set aside. The decretal amount which had been realised by the company is the debt now claimed to be due to the petitioner. The company has already filed an appeal before the Supreme Court so that the claim is disputed, but no stay order has been obtained. The petitioner is said to have proceeded under section 144, Civil Procedure Code, to obtain restitution, but it has not been shown to what extent the restitution proceedings have succeeded in enabling the petitioner to realise these dues. One of the questions which will have to be decided on the winding up petition is whether this court should refuse a winding up order on the ground that the petitioner has an alternative means of relief. The most important or main question to be decided appears to be whether the company is co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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