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TMI Blog2001 (12) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... terest, and at present, a total amount of Rs. 43,15,818 is still due which has not been paid in spite of the reminder and statutory notice. The loan was given to Hostombe Spinals Ltd., 234/3-A, A.C.J. Bose Road, Calcutta, which subsequently merged in Khaitan Overseas and Finance Ltd. vide order of the High Court of Judicature at Allahabad dated 27-5-1997 in company petition No. 44 of 1996 connected with Company Petition No. 19 of 1996 by which the interest of the creditors was protected and safeguarded by the assets of the transferee- company. In Company Petition No. 78 of 1999 an amount of Rs. 28,21,565 has been claimed to be due from the company. 2. Notices were issued on 23-9-1999 in response to which a counter- affidavit of Narend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the court." Rule 21 "21. Affidavit verifying petition Every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where they are more than one, and in the 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 a Judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file an affidavit." 5. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the requirement of law as provided in rule 21, and Order XIX and, thus, I find that the first preliminary objection is devoid of any substance. The judgments in the matter of Gaya Textile (P.) Ltd. In re AIR 1968 Cal. 388, and Mool Chand Wahi v. National Paints (P.) Ltd. [1986] 60 Comp. Cas. 198 (P H), do not support the contention of Sri Agarwal. 6. The next objection is with regard to the competence of Sri S.K. Dhandhania, who is the Chairman and director of the applicant-company, to affirm the affidavit on behalf of the applicant-company. Rule 21, provides that the petition can be presented by a body corporate, by a director, Secretary or other Principal Officer thereof. The objection is that Sri S.K. Dhandhania who is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1 The court found that the proceedings for winding up under section 433 of the Companies Act can, by no stretch of imagination, be equated to suits, or for that matter suits for recovery of money. In winding up proceedings, there is no lis between the company petition and the company sought to be wound up. Once the petition is admitted, creditors, contributors, shareholders, etc., seek redress in the proceedings and even oppose the winding up. The company is directed to be wound up depending upon a case made out, whereupon the assets are taken over and distributed in accordance with the provisions of the Companies Act and the Rules. Sometimes, the relief is denied in the interest of public. The Court further found it difficult to read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relation of company with its directors is that of the principal and agent and the general principles of law of agency will govern their relations: Ferguson v. Wilson [1866] 36 LJ Ch 67. Consequently, it is the company and not the directors, who are liable thereunder : Elkington Co. v. Hurter [1982] 2 Ch 452; Belvedere Fish Guanoco v. Rainham Chemical Works [1921] AC 465; Smith v. Hull Class Co. [1852] 11 CB 897. ( Companies Act, by A. Ramaiya, Fifteenth Edition 2001, Vol. II, page 2525). 9. In the present case, Sri S.K. Dhandhania is a Chairman and director of the company. Along with the amendment application, he has annexed the extract from the minutes of the meeting of the board of directors of Dhandhania Broth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of a right or claim. Legal Thesaurus by William C. Barton published by Macmillan Publishing Co. Inc., describes the suit as follows: "Suit, noun; actio, action, action at law, action to serve justice, case, causa, cause, cause in court, judicial contest, law suit, legal action, legal remedy, lis, litigation, petition, proceedings, suit in law, trial." Black s Law Dictionary, defines law suit as under: Law suit. A Vernacular term, for a suit, action or cause instituted or depending between two private persons in the Court of law. A suit at law or in equity; an action or proceeding in a civil court; a process in law instituted by one party to compel another to do him justice. Shepherd v. Standard Motor Co. 263 Ky. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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