9911796707
TMI Blog2000 (11) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents and sought time to file counter and the matter was directed to be listed to today i.e., on 30-11-2000. 3. A memo signed by the learned counsel for the respondent Sri G. Narendar Raj dated 28-11-2000 was filed in the Registry on the same date. The relevant portion of which reads as follows : "The Respondent-Company informed its counsel, that it received only petition without any affidavit U/R. 21 of the petitioner and material papers. We have awaited up to 23-10-2000. It is to submit that upon failure of Petitioner to supply authenticated petition and Documents, the counsel for the respondent inspected the file on 23-10-2000, with the leave of the Registrar (Judl.). Further the counsel applied for certified copies with bearing Nos. C.A. No./343/2000, C.A. No. 374/2000 and C.A. No. 423/2000 still C.D. copies are not received, yet. It is to submit that U/R 29, of the Companies (Court) Rules the petitioner herein is responsible for service of petition, on the Respondent. He has to serve notice along with the petition, affidavit and Material papers as ( a )U/R 26, the petition has to be served on the Respondent/company. ( b )U/R 27, the Notice shall be in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany petition has not got any Court seals, hence we have been waiting for Court notice. We herewith enclosing a copy of the said received petition. 3. That the petition was received by our company, probably, two months back. The petition was with lack of information hence we did not give any importance, with a view that it was neither a Court notice nor an authentic notice. 4. That recently, the said petition came across me. Then I further verified the petition for notice, but I could not find any notice. Further the said petition does not contain any filing date, hearing date and docket, except CP number. 5. The applicant-company respectfully submits before your Lordships that if the received company petition is an authentic one, then Your Lordships may kindly order notice to us. Upon that we can act accordingly. Hence, the applicant-company humbly prays and craves before Your Lordships that your Lordships may be pleased to order notice to us and may be pleased to recall any adverse orders if passed already against us." 5. It is also pertinent to note that the Xerox copy of the petition said to have been served on the respondents contains endorsement by some officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Appendix II hereof, shall be accompanied by the documents set opposite thereto in column (4) of the said Appendix." 11. Though the rule refers Appendix II, the Company Court Rules, 1959 do not contain anything entitled Appendix. However, at the end of rules after the schedule, which contains various forms contemplated under the rules an annexure is provided, which refers to the rule 22. The annexure deals with the various applications that could be made under the rules and rule 22 stipulates that such applications contained in annexure 2 should be accompanied by such documents as are indicated against each of the items in the annexure and an application under section 439 by the creditors is not one of the items contained in annexure 2. 12. Part III of the rules deals with the winding up by the Court. Rule 95 stipulates that a petition for winding up of a company shall be in such a form as indicated in the rule and is required to be presented in duplicate, in fact there are three forms contemplated under the rule they are 45, 46 and 47. Form No. 45 deals with in general applications that could be filed for the winding up of the Company under the Act. Form No. 46 deals wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petition shall be served along with the notice of the petition; such notice is required to be in Form No. 6 as stipulated under rule 27. 16. As can be seen from the above, that a petition distinct from an affidavit contemplated under rules. The petitions are required to be in the prescribed format depending upon the nature of the petition and the various forms are prescribed in the rules. However, affidavits are treated differently from the petitions. Under rule 18, it is stipulated as to how the affidavit is required to be drawn and how it is to be signed and sworn. Rule 21 mandates that every petition shall be verified by an affidavit and such an affidavit shall be filed along with the petition. Coming to the service under rule 26, it is only the petition that is mandated to be served on the respondent. The makers of the rule are conscious of the distinction between the petitions and the affidavit. The rule does not stipulate that the affidavit also is required to be served on the respondent along with the petition. More particularly, in view of the stipulation in rule 26 that a copy of the petition is required to be served along with notice of the petition, which is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice before admission. Once such a notice is ordered, the Court is normally permitting the counsel for the petitioner to take out notices to be served on the respondent without the aid of the Registry of the Court upon such notice if really the respondent is not served with all the papers filed into the Court in connection with the petition has two options either to obtain copies of the same from the Registry of the Court, or collect such a set of papers from the petitioner or his counsel. As a matter of courtesy among the members in the legal profession whenever such a demand is made by any counsel appearing for one of the parties to the counsel appearing on the opposite side papers are normally supplied. The respondent in this case instead of resorting to either of the procedures though received notice, admittedly on 29-8-2000, comes forward with the present memos raising hypothecate objection, in my view, just to delay the adjudication of the company petition. 19. No substantial defence is placed before this Court as to why the company petition should not be admitted, although the respondent is aware of the pendency of such petition for winding up. In fact the respondent e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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