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TMI Blog1982 (3) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as " the company "), was unable to pay its debts as and when they became due. It appears that the said petition was accepted and on December 5, 1977, the petition was placed on board for admission. The company appeared on an intimation having been received from the petitioning creditors' advocate that the petition would be placed on board for admission. The company also opposed the admission of the petition by filing an affidavit. However, on December 5, 1982, ( sic ) an order was passed as follows: "In the event of the respondent company depositing in court a sum of Rs. 50,000 (Rupees fifty thousand) within twelve weeks from today, the petition to stand dismissed. If such deposit is made, then : ( a )the company's advocates to forthwith intimate to the prothonotary and senior master and the petitioners' advocates the fact of such deposit, ( b )the petitioner to be at liberty to file a suit or counter-claim in the appropriate court for recovery of the amount in petition due to the petitioner, such suit or counter-claim to be filed within eight weeks of the date of intimation that such deposit has been made, ( c )the amount of such deposit to stand credited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid order, the company has preferred this appeal. Shri Chande, the learned advocate appearing on behalf of the company, has submitted that it was obligatory upon the petitioning creditors to have served an individual notice upon the company as required by rule 28 of the Companies (Court) Rules, 1959, and service should have been effected in accordance with the provisions contained in rules 27,28 and 29 of the Companies (Court) Rules, 1959. It is the submission of Shri Chande that the provisions of rules 27, 28 and 29 are mandatory and the effect of the non-compliance with the provisions of these rules is as stated in rule 31 and that is that the petition for winding-up should have been dismissed. The impugned order, therefore, should be set aside. Shri Chande, anticipating an argument that may be advanced on behalf of the respondents, has referred to rules 95 and 96 of the Companies (Court) Rules, 1959, and he has submitted that these two rules do not contemplate that notice of the hearing of the winding-up petition is not to be served upon the company. Shri Tulzapurkar, the learned counsel appearing on behalf of the petitioning creditors, has, on the other hand, submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to Pt. III of the Companies (Court) Rules. Rule 95 provides: "A petition for winding-up a company shall be in Form No. 45, 46 or 47, as the case may be, with such variations as the circumstances may require, and shall be presented in duplicate. The Registrar shall note on the petition the date of its presentation". Rule 96 provides for admission of petition and directions as to advertisement. It states: "Upon the filing of the petition, it shall be posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisements to be published and the persons, if any, upon whom copies of the petition are to be served. The judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition". Rule 96 contemplates notice to be given to persons by publication in newspapers by advertisement in accordance with the directions given by the company judge. It also contemplates notice if the company judge, before giving directions as to the advertisements of the petition, so directs. The persons mentioned in rule 96 are mainly the creditors an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner) Address; [This notice should be served on or before the...... day of...... 19...] *Note: Where the notice is to a respondent named in the petition, a copy of the petition should be served on him along with the notice". This notice in Form No. 6 is to be signed by the advocate of the petitioner. Therefore, it has to be prepared by the petitioning creditors' advocate. It is not for the office of the court to prepare the notice in Form No 6. The notice to persons to be published by advertisement contemplated by rule 96 is the notice in Form No. 6 prescribed by rule 27. It is, therefore, difficult to accept the submission of Shri Tulzapurkar that in a winding-up petition, what the court has to look to is only the rules in Pt. III of the Companies (Court) Rule, 1959, and to shut its eyes to the rules contained in Pt. I of the Companies (Court) Rules, 1959. It is also difficult to accept the submission of Shri Tulzapurkar that rules 27, 28, 29 and 31 do not apply to a winding-up petition. Rule 28 of the Companies (Court) Rules, 1959, is as under: "28. Service on company. (1) Where a petition is presented against a company, it shall be accompained by a notice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory. The words "every petition...every application shall, unless presented by the company be served on the company" are not merely directory but also mandatory. Reading rules 27 and 28 together, the prescribed form referred to in rule 28 is Form No. 6 which is prescribed by rule 27. Rule 28(1) requires that when a petition is presented against a company, it shall be accompanied by a notice of the petition in the form prescribed together with a copy of the petition for service on the company. The notice of the petition referred to in rule 28 is not a letter addressed by the petitioning creditor's advocate to the company intimating the date fixed by the court for the admission of the petition. This is made clear by the fact that after the admission of the petition, a notice has to be served upon the company and this is made amply clear by the said sub-rule (1) of rule 28 which states that the Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. Therefore, the notice contemplated by sub-rule (1) of rule 28 is a notice which is to be served by the Registrar after the winding-up petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of Shri Tulzapurkar that the advertisements published in the newspapers and in the Government Gazette should be taken as service upon the company. This conclusion is further fortified by the subsequent rules, viz ., rules 29 and 31. Rule 29 provides: "Save as otherwise provided by these rules and subject to any directions of the judge or Registrar, the petitioner, applicant or any other person having the conduct of proceedings in court, shall be responsible for the service of all notices, summonses and other processes, for the advertisement and publication of notices required to be effected by these rules or by order of court". While rule 28 provides that the Registrar shall send the notice, rule 29 makes the petitioning creditor responsible for the service of notice. Here also, it will be noticed that the rules make a distinction between service of notice and issue of advertisement. Therefore, even if an advertisement is required to be published as provided in rule 96, it does not exclude service of notice upon the company. Rule 31 makes this position further clear. It states: "In default of compliance with the requirements of the rules or the directions of the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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