9911796707
TMI Blog1990 (10) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... a 2 of the winding up petition reads : "That the petitioner is an iron and steel merchant having his registered office at 19/7, Mathura Road, Opp. Escorts Plant-II, N.I.T. Faridabad, and is engaged in business of supplying all kinds of rods, angles, flats, etc". The constitution of the petitioner-firm has not been stated in the winding up petition. It has not been stated whether the petitioner is a sole proprietorship firm or a partnership firm. The petition is suppprted by an affidavit of Gajindra Kalra. The portion of the affidavit relevant for the present purpose reads thus : "That I am the partner of the firm and as such fully competent to swear this affidavit. I am well conversant with the facts and circumstances of the case. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered firm under the provisions of the Indian Partnership Act ; the name of the firm has been entered in the Register of Firms and the name of Gajindra Kalra appears in Form "A" and he is one of the partners of the firm and continues as a partner of the firm. The application is vehemently opposed by the company. The grounds of objection are two : (1) that the petition as laid was defective as there was no proper affidavit in support thereof because of defect in verification, and (2) for non-compliance with section 69 of the Indian Partnership Act. There can be no doubt that this court in exercise of the power under rule 6 of the Companies (Court) Rules, 1959, read with Order 6, rule 17 and section 151, Civil Procedure Code, has jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Calcutta High Court in Gaya Textiles Pvt. Ltd. v. Star Textile Engineering Works Ltd., AIR 1968 Cal 388, in support of the proposition that different considerations apply to defects in verification of a winding up petition. Counsel submits that in respect of defects in verification of plaints the considerations to be applied are different as allegations in the plaint can be acted upon only on proof of the same by evidence or upon admission by the defendant whereas allegations in a winding up petition can be treated by the court as evidence without any further proof and that the winding up order relates back to the presentation of the winding up petition. The Calcutta High Court came to the conclusion that a defect in ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent states that facts are true to knowledge and belief, he has to specify which facts are true to knowledge and which true to belief. On the facts of the present case the cited decision has no applicability. For the same reasons reliance by Mr. Khanna on decisions in Sunder Industries v. General Engineering Works, New Delhi, AIR 1982 Delhi 220, and another decision reported in the same volume in the case of D.N. Gupta v. Jaswant Singh, AIR 1982 Delhi 250, is misconceived. Mr. Khanna, however, is right in the submission that "true to the best of knowledge" is something lesser than "true to knowledge". The ideal and strictly correct verification would be "true to knowledge" and not "true to the best of knowledge". The lack of an ideal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit is passed. The petitioner in this case is only exercising a statutory right under the Companies Act. That right is not arising from a contract between the petitioner and the company. In my view, the provisions of section 69 have no applicability to proceedings under the Companies Act. I am fortified in my view by a Division Bench decision of the Madras High Court in Kottamasu Sreemannarayanamwthy v. Chakka Arjanadu, AIR 1939 Mad 145, holding: "A petition for the adjudication of a debtor as insolvent is not a proceeding to enforce a right arising from a contract. The right which the creditor who files the insolvency petition against his debtor is seeking to exercise is the right of a creditor who finds his debtor in insolvent cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of section 69(3) are also very clear. The proceedings of winding up are not for enforcement of a right arising from a contract and as such neither section 69(3) nor the decision relied upon by Mr. Khanna has any applicability. Apart from the above, section 69 does not require the plaintiff to state in the plaint that the plaintiff is a registered firm. In case of dispute the plaintiff has to prove the registration of the firm and that the person suing is a registered partner. The absence of such averment does not result in rejection of the plaint (see Sheikh Mohammad Ibrahim and Sons v. Behari Lal Beni Pershad, AIR 1938 Lahore 96). In my opinion, the amendment sought for is only clarificatory in nature. It only seeks to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
