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TMI Blog2017 (7) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with rule 21 of the Companies (Court) Rules. On the issue of giving opportunity to the petitioner to cure the defect, it is noticed that company secretary Devraj Gupta in the affidavit filed in support of the petition has stated that company petition has been drafted on his instructions. Hence, the defect cannot be cured by filing the affidavit of some other competent person. Hence, the company petition is dismissed having not been filed by a competent person. - Company Petition No. 36 of 2016 - - - Dated:- 7-7-2017 - Prakash Shrivastava, J. For Appellant/Petitioner/Plaintiff: Akhil Kumar Purwar For Respondents/Defendant: Vijayesh Atre JUDGMENT Prakash Shrivastava, 1. This company petition has been filed under sections 433(e) and 434(1)(a) of the Companies Act, 1956, for winding up the respondent-company. The respondent has filed the preliminary objections dated March 7, 2017. 2. Counsel for the petitioner submits that he does not wish to file reply of the preliminary objections and wants to orally oppose it. 3. Heard on the preliminary objections. 4. Learned counsel for the respondent submits that company petition has been filed by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her person duly authorised by the petitioner to file the affidavit. On this basis, it was contended that as the petitioners had authorised Satyendra Veer to file the affidavit, this court could still grant leave and accept the affidavit filed by the said Satyendra Veer in view of the proviso. Before this submission is considered, it would be appropriate to notice the provision of rule 21 of the Companies (Court) Rules, which has bearing on the question of the maintainability of the present petition. The said rule reads as follows: '21. 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 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 the judge or the Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit.' Admittedly, in the present case the affidavit verifying the petition is not by the sole prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mp Cas 350 (Delhi), (ii) Suvarn Rajaram Bandekar v. Rajararn Bandekar (Sirigao) Mines P. Ltd. : [1997] 88 Comp Cas 673 (Bom). In the case of Mrs. Roma Deb v. R.C. Sood and Co. P. Ltd.: [1990] 67 Comp Cas 350 (Delhi), where a defective affidavit, which did not meet the requirements of rule 21 and Form No. 3 of the said Rules, was filed in support of the winding up petition, a learned single judge of the Delhi High Court had held that the defect in the verification clause of the affidavit could be remedied by filing another affidavit, since no rights of a third party would seem to be affected. Similarly, in the case of Suvarn Rajaram Bandekar v. Rajaram Bandekar (Sirigao) Mines P. Ltd.: [1997] 88 Comp Cas 673 (Bom) 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 technical ground of failure to comply strictly with the Rules or Forms. So far as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition entirely different considerations apply and the same is not akin to a defective plaint as the allegations in a winding up petition are treated by the court as evidence without any further proof and a winding up order relates back to the date of presentation of a winding up petition. Therefore, if there was no proper verification according to law, then there was no petition at all on which the court could proceed. No leave, therefore, could be granted to rectify the verification. This view of the Calcutta High Court applies with stronger force in the facts of the present case where there was no defect of verification in the verification 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 wilt emerge that whereas the petition has been signed on each page and the prayer cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course and would take into account all relevant circumstances including the conduct of the parties. Taking into consideration the relevant facts and circumstances of the present case at hand and also for the reasons stated above, this court is of the view that the affidavit now being sought to be filed by petitioner No. 2 in support of the petition cannot be taken to cure the defect in complying with rule 21 of the Companies (Court) Rules which, as noted above, are mandatory in nature. For the reasons stated above, the court is of the view that the present winding up petition is not in accordance with rule 21 of the Companies (Court) Rules and will, therefore, not be maintainable only on this ground. 11. In the present case also the supporting affidavit is not in accordance with rule 21 of the Companies (Court) Rules. On the issue of giving opportunity to the petitioner to cure the defect, it is noticed that company secretary Devraj Gupta in the affidavit filed in support of the petition has stated that company petition has been drafted on his instructions. Hence, the defect cannot be cured by filing the affidavit of some other competent person. Hence, the company petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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