TMI Blog1983 (7) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... company. Learned company judge directed notice to issue. In compliance with the order dated May 21, 1982, notice was issued to the company and also to the directors for August 16, 1982, under registered cover. The office reported that acknowledgments had not returned nor were the notices received back undelivered. Learned company judge thereupon passed the impugned order on August 16, 1982, which reads : "Service held sufficient on the respondent company under Chapter VIII, rule 12 of the Rules of the Court. The petition for winding up shall be advertised in the newspaper, Hindustan Times, published from New Delhi and Nav Bharat Times, also published from New Delhi, which is in Hindi. The petitioner shall get three advertisements m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advertisements to be published and the persons, if any, upon whom copies of the petition are to be served. The judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition." "99. Advertisement of petition. Subject to any directions of the court, the petition shall be advertised within the time and in the manner provided by rule 24 of these Rules. The advertisement shall be in Form No. 48." Rules 24 and 26, which appear in Part-I (General) of these Rules, read as under : "24. Advertisement of petition. (1) Where any petition is required to be advertised, it shall, unless the judge otherwise orders, or these Rules otherwise provide, be advertised not less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judge may not dispense with advertisement required by the Rules. This is clear from sub-rule (2) of rule 24. The appellant's learned counsel urged that the learned company judge could not give directions for advertisement without considering whether notice had to be given first to the company in this behalf. Stress was laid by him in this connection upon the observation of the Supreme Court in the case of National Conduits ( P. ) Ltd. [1967] 37 Comp. Cas. 786 (SC); AIR 1968 SC 279 (at pages 788, 789 of 37 Comp. Cas.): "But that is not to say that as soon as the petition is admitted, it must be advertised. The view taken by the High Court that the court must, as soon as the petition is admitted, advertise the petition, is contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no objections were filed before the petition was advertised. Learned counsel for the appellant then submitted that in the order dated August 16, 1982, the learned judge recorded satisfaction that service of notice was sufficient on the "company"; but notices had been issued to the directors also and since it was not observed that the directors too had been served, the direction for advertisement could not be given. The submission is devoid of force in our opinion. Rule 96 envisages notice to be given to the "company" which undisputedly is a legal entity distinct from the directors. Rule 26 referred to by the learned counsel is general ; that does not control the requirement of rule 96 to serve "the company". The notices issued to the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 279, wherein the judge may admit the petition, fix the date of hearing of the petition and order that the petition be served upon persons specified in the order. In Extrusion Processes ( P. ) Ltd. v. Jivdbhai Marghabhai Patel [1966] 36 Comp. Cas. 60 (Bom.), the Bombay High Court took the view that on a plain reading of rule 96, there is no right in a company to be issued a notice before a petition is admitted nor before the court fixed the date for hearing. The appellants learned counsel urged that the advertisement of the petition made in the Hindustan Times and the Nav Bharat Times on September 8, 1982, does not satisfy rule 24(1) since the petition had also to be advertised in the Gazette on the date on which advertisement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he winding-up petition. Suffice it to say, that appearance for the appellant company was put in this case on August 17, 1982, through counsel. This was just a day after the impugned order was passed. The advertisement of the petition took place long afterwards. If the appellant company was genuinely interested in preventing advertisement of the petition lest this causes loss or injury and not so much in delaying the proceedings, there appears no satisfactory ground why objection against the issue of advertisement should not have been made at the earlier opportunity on the 17th aforesaid or immediately thereafter. The appeal, in our opinion, is devoid of force and is dismissed with costs to the respondent which we assess at Rs. 300 only. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
