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TMI Blog1983 (11) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... nt books for the year 1971, an amount of more than one lakh rupees stood to the credit of L.R. Wahi and Co., a proprietorship concern of the petitioner, which amount has now swelled to more than four lakh rupees. A registered notice was sent by him to respondent No. 2 asking him to make payment of four lakh rupees, Later, another notice dated dated January 9, 1980, under Section 434 of the Act was sent through his counsel requesting the respondents to make payment of ₹ 4,20,000. However, the company has not paid the amount. Consequently, it is prayed that the company be ordered to be wound up. 3. The respondents have contested the petition and, inter alia, pleaded that the petitioner at no point of time was the managing director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthwith. Again, a notice dated August 2, 1968, was received by the company from the Income Tax Officer to the effect that if any salary or other sum was paid to the petitioner without specific permission from him, the company and its principal officers will be personally liable to the extent of payment made or ₹ 40,741, whichever was less. Later, a notice dated May 29, 1971, was received from the Tax Recovery Officer, Income Tax Department, directing the company to pay to him a sum of ₹ 26,414 forthwith. Accordingly, the company paid to the Income Tax Department all the dues demanded from the petitioner towards arrears of income-tax/wealth-tax. After debiting the abovesaid amounts, the account of L.R. Wahi and Co., now shows a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that the notice will be deemed to have been served upon the company. 7. The second question that arises for determination is whether the affidavit dated February 20, 1980, is in proper form and, if not, with what effect. The contention of the learned counsel for the respondents is that in the verification clause, paras 1 to 14 of the affidavit have been shown to have been true and correct to the best of the deponent's knowledge and belief whereas he was required to delineate which paras were correct to the best of his knowledge and which to the best of his belief. To support his contention, he made a reference to Bhupinder Singh v. State of Haryana and Gaya Textiles P. Ltd. and Star Textile Engineering Works Ltd., In re, AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the deponent and sworn to in the manner prescribed by the Code or by the rules and practice of the court. Order 19, Rule 3 of the Code of Civil Procedure says that affidavits shall be confined to such facts as the deponent is able to prove from his own knowledge except on interlocutory applications, on which statements of his belief may be admitted. From the aforesaid rules, it is evident that the petition for winding up is required to be accompanied by an affidavit in due form. It is well-settled that if an affidavit is not in due form, no value can be attached to it. In the above view, I am fortified by the observations in Bhupinder Singh's case, wherein Tek Chand J., after noticing Order 19, rule 3(1) of the Code, observed as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nath Sarkar v. State of Bihar, AIR 1962 Pat 101. 10. The learned judge, in view of the fact that the verification of the affidavit was not proper, ignored the affidavit filed by the petitioner in that case. In a petition for winding-up, it is mandatory to file an affidavit along with the petition. The purpose of the affidavit is that the allegations in the affidavit read with the petition are treated as substantive evidence. In case the petition is not accompanied by an affidavit, in view of the rules mentioned above, it is no petition in the eye of law and consequently it is liable to be dismissed on this ground alone. The main reason is that the petition for winding-up, if accepted, relates back to the date of its presentation. In c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the winding-up petition and the date when the court grants the company leave to re-verify the petition would also create a good deal of confusion. Since a winding-up order relates back to the date of presentation of the winding-up petition, all dealings by the company with its assets would be subject to the rules relating to fraudulent preferences and transactions are liable to be set aside on the ground that the company had unlawfully dealt with its assets in order to deprive its creditors. But if leave is granted to the petitioner to cure the defect in the verification by allowing re-verification of the petition according to the rules today, it would be open to the company to contend, if a winding-up order is made, that the rules rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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