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TMI Blog2009 (2) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 was challenged by invoking section 483 of the Act in Company Appeal No. 13 of 2008. Along with the appeal applications for condoning the delay of 1,050 days in filing and 72 days in re-filing the appeal were also filed. The.Appellate Bench declined to condone the delay of 1,050 days in filing the appeal although it has condoned the delay of 72 days in re-filing of the same. The operative part of the order dated 1-8-2008, rejecting the prayer made for condonation of delay in filing Company Appeal No. 13 of 2008 reads thus : "We have gone through the contents of the application and unable to agree with the contentions raised by the counsel for the appellant. A perusal of the above would show that no reasons whatsoever have been given by the applicant, which could explain an inordinate delay of 1,050 days in filing the Company Appeal. There can be no dispute that where sufficient cause, as mentioned in section 5 of the Limitation Act, has been shown by the applicant, it must receive a liberal construction so as to advance substantial justice. Delays in preferring appeals should be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The order of admission has been challenged before the Hon ble Division Bench. I am informed that the appeal stands dismissed. Let the publication regarding the factum of admission be made in the Indian Express (New Delhi Edition), Dainik Bhaskar (Regional Edition) and Official Gazette of Haryana Government. List on 3-10-2008." 3. Mr. R.C. Setia, learned senior counsel for the appellant has raised two submissions before us. His first submission is that if directions were issued to the respondent, who had filed CP No. 129 of 2004, to furnish the details of dues then all such dues could have been paid and settled. His grievance is that the learned Company Judge without passing any order on the application has directed publication of factum of admission of the petition. Another submission made by the learned counsel is that the Court should have issued a notice to the appellant before directing publication of the factum of admission. In support of the aforesaid submissions, learned counsel has placed reliance on a judgment of Hon ble the Supreme Court in the case of National Conduits (P.) Ltd. v. S.S. Arora AIR 1968 SC 279. 4. Ms. Jai Shree Thakur, learned, counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accounts with them because such a course is not available in view of the provisions of section 447 of the Act. It follows that the claim of the appellant alone is not to be considered. According to section 447 of the Act an order for winding up of a company is to operate in favour of all the creditors and of all the contributories of the company as if it had been made on the joint petition by the creditors and all the contributors. The Bombay High Court in the case of S.P. Capital Financing Ltd. v. Bagade (India) Engg. Ltd. [2002] 109 Comp. Cas. 657, rejected the application of one of the creditors who had filed a winding up petition holding that the prayer made by such creditors is not acceptable. It has been observed that section 447 of the Act in its plain language provides that as soon as the order of winding up is passed the nature of the winding up petition undergoes a transformation from an individual petition to a petition on behalf of all the creditors and all the contributors. Therefore, the petitioner was not permitted to withdraw the petition without the consent of all the creditors or contributories. Therefore, it is not surprising that the learned Company Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was bound forthwith to advertise the petition. That order was challenged before Hon ble the Supreme Court. Allowing the appeal, Hon ble the Supreme Court observed as under : "When a petition is filed before the High Court for winding up of a company under the order of the Court, the High Court ( i ) may issue notice to the Company to show cause why the petition should not be admitted; ( ii ) may admit the petition and fix a date for hearing, and issue a notice to the Company before giving directions about advertisement of the petition; or ( iii ) may admit the petition fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order. A petition for winding up cannot be placed for hearing before the Court unless the petition is advertised; that is clear from the terms of rule 24(2). But that is not to say that as soon as the petition is admitted, it must be advertised. In answer to a notice to show cause why a petition for winding up be not admitted, the Company may show cause and contend that the filing of the petition amounts to an abuse of the process of the Court. If the petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. s case ( supra ) cannot be regarded as an authority for the proposition that after admission and before issuing direction for advertisement of the petition by publication, a notice to the company facing liquidation is required to be given. Even otherwise on the facts of the present case, the company petition was admitted on 26-5-2005 and direction for advertisement of the petition by publication have been issued on 7-8-2008 after Company Appeal No. 13 of 2008, filed by the appellant against the order of admission dated 26-5-2005, has been dismissed. A perusal of the original record of CP No. 129 of 2004 shows that the learned Company Judge after admission of the petition on 26-5-2005 has kept the matter for hearing on 28-7-2005 with regard to issuance of direction for advertisement of petition by publication. On that date, the respondent had filed CA No. 456 of 2005. The prayer made in CA No. 456 of 2005 was for substituting the respondent by impleading M/s. Kotak Mahindra Bank Limited by asserting that the respondent bank has assigned all its rights, title, interest and benefits in respect of its claim against the appellant company together with secured interest thereon to M/s ..... 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