TMI Blog1992 (2) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... e wound up under the directions of the court. On notice being issued, the applicant-company opposed the winding up petition by its affidavit. In the judge's summons a contention is taken that the petition for winding up is liable to be rejected in limine on the ground that the petition has been signed and verified by a constituted attorney which is not maintainable and is incompetent under the law and, secondly, on the assumption that a petition can be instituted by a duly authorised agent, it is urged that attorney who has instituted the winding up petition has no authority under the power of attorney to do so. To complete the narration it may be mentioned that respondents Nos. 1 and 2 claim that under the agreement dated February 10, 1987, the applicant-company has failed to return the amount deposited with the company. The petition has been sworn by Pravinkumar Gosalia claiming to be the constituted attorney of the respondents. The affidavit in support has also been filed and sworn by the aforementioned Pravinkumar Gosalia, under power of attorney dated October 29, 1990. Mr. S. K. Kakodkar, learned counsel for the applicant-company, contends that having regard to the speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable they are nevertheless saved to the extent provided for by the Act or by the rules. But when one turns to rule 21, it is clear that when any agent of a petitioning party wants to make and file an affidavit leave has to be obtained by that agent either from the court or the Registrar of the court. For better understanding of the matter, rule 21 comes under the heading "affidavit verifying petition". There can be no controversy that every petition for winding up must be accompanied by an affidavit which must verify the petition for winding up. That rule says that every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners where there is more than one and in case the petition is presented by a body corporate, by a director, secretary or other principal officer thereof, and that such affidavit shall be filed along with the petition and shall be in Form No. 3. The proviso, however, reads thus : "Provided that the judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit." Mr. Kakodkar now points out that in the case of any other person who may be dul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e know of the facts or the special relationship between the two. He now says that if an agent is permitted to lodge winding up proceedings after verifying the pleadings by an affidavit the hearsay statements made therein may lead to undesirable results and in that behalf places reliance on rule 100 to say that once a petition for winding up is filed, the petitioning party is not permitted to withdraw the same unless sanctioned by the court. Under rule 100 even when the petitioning party seeks leave to withdraw the petition which has been directed to be advertised, such an application cannot be heard before the date fixed in the advertisement. This is obviously so for the reason that once the petition is lodged before the company court it no longer remains a res between the petitioning party and the company and these proceedings can be utilized by other creditors for getting redress or opposing the proceedings for winding up. In other words, the res is not restricted between the parties thereto and the inquiry gets enlarged depending upon the claims made against the company sought to be wound up. Mr. Kakodkar says that such a matter cannot be looked on as a suit or equated with on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court", in rule 1 of Order 3 includes and must include company court because rule 6 of the Companies (Court) Rules in the matter of practice and procedure clearly says that the provisions of the Code so far as applicable apply to all proceedings under the Act and the Rules. In so far as civil suits and proceedings before ordinary courts are concerned, the parties are permitted to be represented by their agents and for that matter, as noticed earlier, the agent has authority not only to appear and file applications but to act or take all such steps as may be possible for a party himself. The recognized agents are those who are holding powers of attorney authorizing them to do or make such appearance, applications, Acts as the case may be. For that matter, the other categories or persons included are spoken to in clause ( b ) of rule 2 of Order 3. Even service of a process on a recognized agent is permitted and such service on the agent is equally valid. In the matter of pleadings under rule 15, Order 6, persons acquainted with the facts of the case are permitted to verify them, which are otherwise required to be verified by the parties themselves. We have already seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nows. Such occasions are not rare, and will depend upon the facts and circumstances in a given case. The Code of Civil Procedure does not define a court. As mentioned earlier, section 2(11) of the Companies Act defines "court" to mean with respect to any matter relating to any company (other than the offence against the Act), the court having jurisdiction thereunder, with respect to that matter related to the company as provided under section 10. We have already seen that section 10 under the heading "Jurisdiction of the court" provides that the High Court is the court having jurisdiction in relation to the place at which the registered office of the company concerned is situated except to the extent the jurisdiction has been conferred on any District Court subordinate to the High Court. There is also an enabling section by which the same jurisdiction can be specifically conferred on a District Court in regard to matters falling within the scope of jurisdiction so conferred, provided, however, that the companies have a registered office within the district. Coming back to Order 3 of the Code of Civil Procedure, rule 1 says that appearance may be by the person or his recognized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed agent or constituted attorney to make and file the affidavit verifying petitions. I have already made abundant reference to this proviso earlier and in my view it is a clear indication in support that it is permissible for the constituted attorney to make and file an affidavit verifying the petition on obtaining leave of course which, therefore, supports the theory that a petition for winding up can be instituted by a recognized agent. This is, however, not to say that a constituted attorney can file the affidavit without obtaining leave. I have already seen that even when Order 3, rule 1, provides for appearance or act by a recognised agent yet the court is empowered to direct the party to remain present in person in court and this is found in the proviso to rule 1 despite the fact that a party can be represented by its agent. Now, the proviso to rule 21 of the Companies (Court) Rules speaks of leave either from the Registrar or the court when the authorised agent wants to file the affidavit on behalf of the petitioning party. These are more or less in the nature of safeguards, so that nothing is abused. Mr. Usgaokar, learned counsel appearing for the respondents, indeed ur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontracts, agreements, deeds of surrender, releases, assurances, acts and things as shall be requisite or as our said attorney may deem necessary or proper for or in relation to or any of our aforesaid deposits lying with the said companies or any of them. 2.To receive every sum of money whatsoever which may become due or payable to us from the aforesaid companies or any of them and on receipt thereof to make, sign, execute and give good and sufficient receipts, releases, acquittances or other discharges for the same. 3.To demand and to recover from the aforesaid companies any amounts that may become due or payable to us, and to give valid and effective receipts therefor. 4.To file suits and/or proceedings against the aforesaid companies or any of them for recovery of the amounts that may become due or payable to us ; and also to affirm plaints, affidavits, and other pleadings that may be necessary and our said attorney may think fit and proper and to engage solicitors, advocates, pleaders and lawyers in any such matters and also to appear before any court and to give evidence or statements on oath or otherwise, as also to defend any suits that may be filed against us by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted attorney has been duly authorised to recover the money due under the agreement. In the matter as to how the powers are construed strictly, Mr. Kakodkar placed reliance on Jiwibai v. Ramkuwar Shriniwas Murarka Agarwala, AIR 1947 Nagpur 17, P. M. Desappa Nayanim Varu v. Ramabhaktula Ramiah, AIR 1952 Mad 559, H. Ezekiel v. Carew and Co. Ltd., AIR 1938 Cal 423 and D. H. M. Framji v. Eastern Union Bank Ltd., AIR 1951 Punj 371. He also relied upon the decision in Mt. Inderwati v. Hari Ram, AIR 1937 Lahore 318, to suggest that even when power is given to prefer an appeal, such power cannot be read to authorize the power of attorney to file an application in 'forma pauperis'. The settled principle is that powers of attorney must be strictly construed, the rationale behind that principle being that the powers given are not abused by the agents and the actions are restricted within and only to the extent the power is indicated or given. Even when one reads the power as a whole what it boils down to is this : that the constituted attorney, Gosalia, is authorised to file suits and/or proceedings against the company for recovery of the amount and also to affirm plain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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