TMI Blog1998 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... d for consequential relief that Company Petition No. 430 of 1992 be restored to file and be heard and finally disposed of on merits. 3. For the sake of brevity and convenience, I intend to refer to the facts of Company Application No. 363 of 1997 in Company Petition No. 422 of 1992. The said company petition was filed by the petitioning creditor. Skol Breweries Ltd. for winding up of the applicant-company Sanman Distri-butors (P.) Ltd. According to the petitioning creditor, a huge sum was outstanding against the applicant-company and despite various demands, when the company did not make payment, statutory notice was sent at the registered office of the company. Even thereafter the company did not make payment, necessitating filing of the present company petition, seeking winding up of the company on the ground that it was unable to pay its debt. The company petition was accepted and notice was issued to the applicant-company. On 2-3-1995 when the matter came up for admission before this Court, Miss Sidhwa, Advocate, appeared and stated that she was unable to take instructions from the company in view of the order passed by the City Civil Court, Bangalore, on 21-11-1994 and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be relied upon in support of the present application as well. The applicant-company also filed a suit, being Suit No. 2473 of 1992, against Shaw Wallace Co. Ltd. for recovery of a sum of Rs. 67,31,175.80 together with interest thereon at the rate of 18 per cent per annum. The applicant-company also filed a suit against the petitioning creditor Skol Breweries Ltd. for recovery of a sum of Rs. 1,63,49,286.80 together with interest thereon at the rate of 18 per cent per annum. The fact of filing of the present company petition and the connected company petition came to the knowledge of the Advocates for the company for the first time from the affidavit filed in Notice of Motion No. 2299 of 1995 in Summary Suit No. 3498 of 1992. In the said affidavit, a reference was made about the admission of the two winding up petitions against the company. The advocates of the company in that suit addressed a letter to the Advocate for the petitioning creditor to furnish a copy of each of the company petitions as well as the orders that have been passed in the said two matters. The Advocate for the petitioning creditor by his letter dated 31-8-1995 sent copies of the said two company peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant-company cannot now challenge the order of winding up and the appointment of Official Liquidator on the ground that they had no notice particularly when the Advocates were aware of the company petition. 6. It is not necessary for me to go into the question about the various disputes allegedly going on between two groups of Chhabaria brothers nor I intend to go into the question whether Jagdish Hinduja and Gopal Ahuja, after their alleged removal from the board of directors of the applicant-company on 26-12-1992, could have instructed any Advocate to appear for the company because, in my view, the company application made by the applicant-company can be decided without going into these questions. 7. There is no dispute that on acceptance of the company petition, notice was issued to the company. Such notice was in the nature of show-cause notice before admission. On 2-3-1995 when the matter came up for admission before this Court, Miss Sidhwa, Advocate instructed by Mehta Girdharilal, appeared and stated that she was unable to take instruc- tions in the matter in view of the order passed by the City Civil Court, Bangalore, on 24-11-1994 and, therefore, she praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be responsible for the service of all notices, summons and other process and for the advertisement and publication of notices, required to be effected by these Rules or by order of Court." Rule 30 "Affidavit of service. (1) An affidavit or affidavits stating whether the petition has been advertised as prescribed by Rule 24 and whether the notices if any have been duly served upon the persons required to be served shall be filed not less than 3 days before the date fixed for hearing. Such proof of the advertisement or of the service, as may be available, shall be filed along with the affidavit. (2) An affidavit of service on a company or its liquidator shall be in Form No. 7 or 8 as the case may be." Rule 31 "Procedure on default of compliance as regards advertisement and service of notice : In default of compliance with the requirements of the Rules or the directions of the Judge or Registrar, as regards the advertisement and service of the petition, the petition shall, on the date fixed for hearing be posted for orders of the Judge and the Judge may either dismiss the petition or give such further directions as he thinks fit." 8. In Modern Dekor Painting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies (Court) Rules upon the company ? The effect is as directed in rule 31 of the Companies (Court) Rules, viz., that the petition will have to be posted for orders for dismissal of the petition or to pass such order as the Court may deem fit." (p. 683) 9. I have also no hesitation to hold that the procedure in the manner laid down under rules 27 and 28 has to be mandatorily followed and complied with on admission of winding up petition save and except where at the time of admission of winding up petition, the company is represented by its Advocate and the notice is waived or is dispensed with by the Court, otherwise notice to the company has to be issued and served in winding up petition in accordance with the provisions contained in the Companies (Court) Rules. Failure to comply with the procedure as required under rules 27 and 28 unless ordered otherwise by the Court may entail in dismissal of the company petition under rule 31 and that also indicates the mandatory nature of rules 27 and 28. The procedure contemplated by rules 27,28 and 29 cannot be permitted to be substituted by self-invented procedure of sending intimation about the admission of winding up petition to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntimation was sent to Mulla Mulla, they were not the Advocates of the applicant-company in the company petition. Mulla Mulla had not put in any appearance in the winding up petition. The information sought by them (Mulla Mulla) regarding the winding up petition was in their capacity as Advocates in some suit in which they were representing the applicant-company. Moreover, in the communication dated 31-8-1995, the petition-ing creditors's Advocate did not intimate. Mulla Mulla about the date of hearing fixed in the said company petition. The copies of the advertise- ment annexed to the said communication gave the date of hearing as 20- 4-1995 which had expired long back since the communication itself was sent by the petitioning creditor's Advocate on 31-8-1995. It is an admitted fact that at no point of time the petitioning creditor intimated and informed the applicant-company about the date of hearing. It is also not the case of the petitioning creditor that the applicant-company had knowledge that the company petition was fixed for hearing on 25-4-1997. It is pertinent to note that on 2-3-1995 when the company petition was admitted, service on behalf of the applicant-compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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