9911796707
TMI Blog1998 (10) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... a cheque for Rs. 90,000 on 8-4-1995, which was returned by the bank for the reason that the same exceeded arrangement. When the said fact was brought to the notice of the company, one of its directors, Shri S.K. Misra, by means of the letter dated 26-8-1995, expressed regret and assured the clearance of the dues along with compensation, at an early date. It transpires that the said promise was hollow as no payment was made. Consequently, the petitioner was constrained to serve a statutory notice of demand dated 22-7-1997, for the aforesaid amount along with interest. Despite the service of the notice at the registered office of the respondent, the company failed and neglected to pay the same, consequently the present petition. It is noteworthy that the affidavit in support of the petition was filed by Satyendra Veer, son of late Baljeet Singh, resident of 409, W. K. Road, Meerut, as pairokar and the petition was also signed by the said pairokar. On notice being issued, the company put in appearance and filed objection which was supported by an affidavit of one of its directors, namely, Shri A.K. Misra, wherein it was, inter alia, asserted that the supplies made by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 4. Initially this case was heard along with two other connected company petitions, namely, Company Petitions Nos. 82 and 88 of 1997. The Court had reserved the orders thereon. It was found by the Court that the present petition was not in accordance with rule 21 of the Companies (Court) Rules, 1959, consequently, it was directed to be listed for further hearing. The learned counsel for the petitioners sought adjournment and on the next date he filed an application dated 24-9-1998, inter alia, praying that the affidavit filed by Satyendra Veer be accepted in support of the winding up petition or another affidavit which was being filed along with the application by petitioner No. 2 be accepted in support of the winding up petition. I have heard the learned counsel for the parties on the question of maintainability of the petition as well as on the merits of the application dated 24-9-1998. 5. Shri Vivek Chaudhary, the learned counsel for the petitioners has strongly contended that the objection with regard to rule 21 was not taken in the counter-affidavit and was also not raised at the time when the petition was filed or during the initial hearing of the company petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule reads as follows: " 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." 7. Admittedly, in the present case, the affidavit verifying the petition is not by the sole proprietor, R. P. Tayal, on behalf of the proprietorship firm but by a pairokar, namely, Satyendra Veer. In view of the provisions of rule 21 the petition is not in accordance with the mandatory requirements thereof. So far as the proviso is concerned, it will be necessary to note that the affidavit filed by Satyendra Veer as pairokar in support of the petition nowhere states that the said person was duly authorised by the petitioners to file the affidavit in support of the petition. All that it says is that, "the deponent was the pairokar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Suvarn Rajaram Bandekar (supra) where the affidavit filed in support of the winding up petition was defective and not properly verified, a learned Single Judge of the Bombay High Court (Panaji Bench) held that the petition could not be dismissed on the technical ground of failure to comply strictly with the Rules or Forms. So far as the aforementioned cases are concerned, as already noticed, the same pertain to defect in the verification clause of the affidavit which was not in accordance with Form No. 3 contained in the Companies (Court) Rules. It is on those facts that the Court had held that the defect in the verification clause could be cured by filing another affidavit in support of the petition and the defect was only of a technical nature or a mere irregularity which could be rectified. The facts, however, in the present case at hand are not the same. Here, the defect is not in the verification clause of the affidavit and the question is not off the non-compliance of Form No. 3. Here, the affidavit filed in support of the petition has been filed by a pairokar and the affidavit does not disclose that the said pairokar had been authorised by any of the petitioners to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation clause or in the form of verification but the winding up petition was presented by a person who was not the petitioner but a pairokar only and there being nothing to show in the affidavit that he was authorised by the petitioner to file the petition. It is also noteworthy that the said pairokar has also signed the petition and the prayer made in the petition. Now, if the affidavit of petitioner No. 2 which is sought to be filed is accepted, the position which will emerge is that whereas the petition has been signed on each page and the prayer clause by the pairokar Satyendra Veer, the affidavit which is now sought to be filed will be by petitioner No. 2. This anomaly cannot be reconciled. The decision of the Calcutta High Court in the case of Gaya Textiles (P.) Ltd. and Star Textile Engg. Works Ltd. (supra) , has been followed by a learned Single Judge of the Punjab and Haryana High Court in the case of Mool Chand Wahi v. National Paints (P.) Ltd. [1986] 60 Comp. Cas. 198 and the judgment of the learned Single Judge in the said case was confirmed by the Division Bench of the same High Court in the case of Mool Chand Wahi v. National Paints (P.) Ltd. [1986] 60 Comp. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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