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TMI Blog2018 (9) TMI 1704X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the assets, books of account and properties of the Company with all powers under the provisions of the Companies Act, 1956." 4. Mr. Zal Andhyarujina, learned Counsel for the appellant submits that the name of the company "Beautiful Diamonds Limited" was changed to "Splendour Gems Limited" after due compliance with the provisions prescribed under the Companies Act, 1956. He submits that despite such change of name, the petition was advertised in the newspaper as also in the official gazette in the name of "Splendour Gems Limited". He submits that issuance of a proper advertisement in the proper name is a mandatory requirement prescribed in Rule 99 of the Company Court Rules, 1959 (said Rules). He submits that as a result of the defective advertisement, no effective opportunity was available to all concerned parties to either oppose or support the Company Petition. He therefore submits that the impugned order is liable to be set aside for failure to comply with the mandatory provisions set out Rule 99 of the said rules. 5. Mr. Prakash Punjabi, learned Counsel for the respondent submits that the Rule 9 of the said rules retains inherent powers in a Company Court and in the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ......., presented to the said Court by the said company [or where the petition was not presented by the company, state the name and address of the petitioner and the capacity in which he presents the petition, e.g., creditor, contributory, etc.] and that the said petition is directed to be heard before the Court on the .......... day of ............ 19..... Any creditor, contributory or other person desirous of supporting or opposing the making of an order on the said petition should send to the petitioner or his advocate notice of his intention signed by him or his advocate with his name and address, so as to reach the petitioner or his advocate not later than 5 days before the date fixed for the hearing of the petition, and appear at the hearing for the purpose in person or by his advocate. A copy of the petition will be furnished by the undersigned to any creditor or contributory on payment of the prescribed charges for the same. Any affidavit intended to be used in opposition to the petition should be filed in Courts and a copy served on the petitioner or his advocate, not less than 5 days before the date fixed for the hearing. Advocate for Petitioner. [Emphasis supplied]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship fees. Indeed commercial honesty requires quite the opposite that they be fully informed and be enabled to take fully informed decisions. Accordingly the second purpose of advertisement to which I have referred, namely, informing the public, requires that advertisement proceed at once. The first purpose also has application. For it is common ground that all members past and present are entitled to the repayment of all membership fee if the scheme is held to be a lottery. If this is so, not merely will the company be insolvent, but all such existing and past members may rank as creditors and should be entitled to be presented and heard on the hearing of the petition". 13. This is precisely the reason why the form of the advertisement as prescribed in form 48 makes it clear that any creditor, contributor or other person desirous or supporting or opposing the making of an order on the said petition should send to the petitioner or his advocate notice of intention signed by him or his advocate with his name and address, so as to reach the petitioner or his advocate not later than 5 days before the date fixed for the hearing of the petition, and appear at the hearing for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any creditors, contributors or other persons desirous of supporting or opposing such petition, so that such persons may participate in the proceedings in which they are presumed to have legal interest. Therefore, if there is no advertisement of such petition or if the advertisement is in an incorrect name, then, it is possible that such persons interested in either supporting or opposing the petition for winding up are deprived of this valuable opportunity. An order for winding up of a company affects not only the company which is ordered to be wound up, but also its creditors, contributors or other persons as referred to in Form-48 appended to the said rules. In the present case, the name of the company was already changed. The advertisement was however published in the earlier name with no reference whatsoever to the changed name. Therefore, it cannot be said that the error in the advertisement was so inconsequential as could be overlooked. 19. Mr. Punjabi, however contended that parties who have dealt with the company in its former name will be misled, if advertisement is issued in the changed name. This is possible, but the same can be said about persons who may have dealt ..... 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