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TMI Blog1986 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... id varying amounts to the company during the period 1963-64. The details as to which plots these petitioners wanted to buy and were allotted and the amounts paid by them have been set out in the petition. For the purpose of the present order, it is not necessary to refer to all the details except to note that some of the grounds mentioned for winding up the company are that the substratum of the company has gone and that the company is using the amounts paid by the petitioners as plot holders and of other plot holders in other business activities of the company and that the company is suffering loss in all its financial activities and that it is just and equitable that the company be wound up. It is alleged that the company is guilty of breach of contract and is commercially insolvent. Again, I need not refer to the alleged acts of mismanagement as. given in the petition for the purpose of this order. The petitioners feel aggrieved that all these years they have been deprived of their moneys and given false promises. The petition was filed on February 1, 1985. At that time, there were 22 petitioners. It was supported by an affidavit of Mr. R.N. Paul, one of the petitioners. By an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rections or pass such orders as may be necessary for the ends of justice or to prevent abuse of process of the court. Rule 21 is as under : "21. Affidavit verifying petition. Every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where there are more than one, and in case the petition is presented by a body corporate, by a director, secretary or other principal officer thereof, such affidavit shall be filed along with the petition and shall be in Form No. 3 : Provided that the Judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit." Under rule 18, every affidavit is to be drawn up in the first person and should give the particulars of the deponent as mentioned therein. It is to be signed by the deponent and sworn to in the manner prescribed by the Code or the rules and practice of the court. Under rule 17, the Forms set forth in Appendix I (which contains Form No. 3), where applicable, shall be used with such variations as circumstances may require. Relevant portion of Form No. 3 is as under : "2. The statements made in paragraphs.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the defendant and that the allegations in a petition for winding up were, however, to be treated by the court as evidence without any further proof. It was also stated in this judgment that a winding up order related back to the date of presentation of the petition and that if on such date there was no proper verification, then there was no petition at all on which the court could proceed. On the question as to whether the court could permit the petitioner to re-file the affidavit, the court observed as under (headnote) : "If leave to verify such a petition is granted, the winding up order would come into existence on the date of such re-verification and this would create a good deal of confusion regarding assets of the company and rights of third parties. Such leave, therefore, could not be granted." This judgment of the Calcutta High Court was followed by the Punjab and Haryana High Court in Mool Chand Wahi v. National Paints ( P. ) Ltd. [1986] 60 Comp Cas 198 ; [1984] Punj LR 182. This judgment was again confirmed in appeal before the Division Bench of the Punjab and Haryana High Court and that decision is reported as Mool Chand Wahi v. National Paints ( P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was presented. Under section 21 of the Limitation Act, 1963, where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him fee deemed to have been instituted when he was so made a party. But, there is a proviso and it says that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. I am mentioning all this to show that dating back of the petition under various circumstances is not something new to the law. If the effect of permitting an act is to relate back the petition, otherwise initially defective, to its original date of filing, this could be permitted in the ends of justice and the court will see if any prejudice is being caused to the other party, which could not be compensated by costs or otherwise. A balance has to be a struck between two warring parties. If amendment of the petition can be allowed, there does not seem to be any reason as to why a defective affidavit verifying the petition could not be rectified. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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