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TMI Blog2004 (3) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... heard of since 1989 and was legally presumed to be dead having regard to the provisions of section 108 of the Indian Evidence Act, 1872. It was the case of the appellant/petitioner that Shri Ajoy Dalan, being fully aware of the fact of Lokenath Jeloka s death, had fraudulently made use of the Power of Attorney executed in his favour by Lokenath Jeloka to file the winding up petition. 3. Apart from the above, various other objections were also taken, but ultimately by an order dated 31st July, 2002, the learned Company Judge dismissed the application for recalling of the order dated 14th August, 2001, without deciding the question regarding the maintainability of the winding up petition itself at the instance of Shri Ajoy Dalan on the basis of the Power of Attorney executed in his favour by Lokenath Jeloka. 4. This appeal is directed against the said order of the learned Company Judge dated 31st July, 2002, dismissing the application for recall of the order dated 14th August, 2001, admitting the winding up petition and the subsequent order dated 30th January, 2002, directing winding up of the company. 5. Appearing in support of the application for stay filed in the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 108 relates to the factum of death and not to the day of death of the person untraced. The presumption starts from the date when the dispute arises, that is when the suit is filed. Mr. Shome submitted that in the instant case the presumption started from the day when the winding up petition was filed and it was for the holder of the Power of Attorney to establish that the principal, Lokenath Jeloka, was alive on that date. 11. Mr. Shome then referred to a Single Bench decision of the Allahabad High Court in the case of Mahendra Pratap Singh v. Smt. Padam Kumari Devi AIR 1993 All. 143, wherein while considering the validity of a Power of Attorney executed by a person whose mental condition and infirmity had rendered her incapable of deposing on the bona fides of the Power of Attorney executed by her, the learned Judge was of the view that the Power of Attorney may have been good while it lasted but the state of the health of the principal had rendered it worthless for the purpose of the suit. 12. Reference was also made to a Bench decision of the Punjab High Court in the case of Amar Kaur v. Sadhu Singh AIR 1961 Punj. 57 wherein it was held that an appeal filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a petition for winding up can be sworn by a duly authorised person on behalf of the petitioning party on obtaining leave from the Judge or Registrar of the Company Court but such constituted Attorney must be specifically authorised to file a company petition for winding up of a company. A mere authorisation to file suits or proceedings for recovery of an amount is not sufficient to empower him to institute proceedings under the Companies Act for winding up of a company. 16. Mr. Shome submitted that the aforesaid provisions of law had been completely overlooked and/or disregarded by the learned Company Judge while dismissing the appellant/petitioner s application for permanent stay of the winding up proceedings on account of the legal infirmity inherent in the filing of the winding up petition. Mr. Shome urged that the winding up proceedings being a nullity, all the orders passed therein admitting the winding up petition and finally directing winding up of the company were liable to be set aside. 17. The stay application and the contentions raised in connection therewith were hotly contested on behalf of the petitioning creditor. Supporting the orders passed by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard of for a period of not less than seven years, died at the end of the first seven years or on any particular date. The burden of proving the date of death of a person is always upon the person who asserts that the person had died on a certain date because there is no presumption about the date of death. The only presumption under section 108 of the Evidence Act is that a person is dead if he has not been heard of for seven years and this presumption only arises when a question is raised in a Court as to whether a person is alive or dead. 19. Changing tack, Mr. Mukherjee urged that even if it is to be presumed that Lokenath Jeloka was not alive, such a presumption would arise as and when such a dispute was raised. In other words, according to Mr. Mukherjee there has to be an adjudication relating to the presumption of death and necessarily it would have to be presumed that the person died on the date of the order being made upon such adjudication. In such a case, Mr. Mukherjee submitted that it would always be open for the heirs of the person presumed to be dead to come forward and apply for substitution in the pending proceedings in place of the person adjudged to be dead. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal had been filed on a misconceived premises of law and was liable to be dismissed with appropriate costs. 24. Having regard to the nature of the submissions made on behalf of the appellant/petitioner, at the very initial stage we are called upon to consider the very validity of the winding up petition itself and whether it had at all been validly filed on behalf of the petitioning creditor, Lokenath Jeloka, on the strength of the Power of Attorney executed in favour of Shri Ajoy Dalan, who had verified the petition on the strength of such Power of Attorney. 25. From the facts as disclosed it appears that the winding up petition which was admitted on 14th August, 2001, had been filed on 28th September, 2000, on behalf of Lokenath Jeloka by Shri Ajoy Kumar Dalan purportedly on the strength of a General Power of Attorney executed by Lokenath Jeloka. Leave was obtained under Rule 21 of the Companies (Court) Rules, 1959, to make and file the affidavit verifying the winding up petition by Shri Dalan as the Constituted Attorney of the petitioning creditor, Lokenath Jeloka. 26. On 26th June, 2002, a Judge s Summons was taken out on behalf of the appellant/petitioner, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for seven years. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it." 32. The appellant/petitioner has asserted that Lokenath Jeloka had not been heard of since 1989 and has relied on some documents in support thereof. 33. Instead of refuting and/or disproving the case of the appellant/ petitioner, Mr. Mukherjee, appearing for the petitioning creditor, tried to make out a case that the winding up petition had been properly filed and that even if the contention of the appellant/petitioner regarding the presumption of death under section 108 of the Evidence Act of Lokenath Jeloka is accepted it would not affect the validity of the said petition as his heirs could be substituted in the proceedings in his place. The logic behind Mr. Mukherjee s said contention is that if in an adjudication under section 108 of the Evidence Act a person is presumed to have died a civil death, there can be no presumption as to the date of death and the civil death would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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