TMI Blog2001 (5) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 439 of the Companies Act, 1956, ( the Act ) for winding up of the respondent-company. The said company petition was admitted for hearing and a provisional liquidator was appointed on 10-6-1998. No direction was given to advertise the petition, as required under rule 24 of the Rules. An application (C.A. No. 631 of 2000) was filed by the appellant for directions to advertise the petition praying further that while directing the petition to be advertised in a daily newspaper in the English language and a daily newspaper in a regional language circulating in Delhi, the requirement of advertising the petition in the Official Gazette be dispensed with. The learned company judge by the impugned order directed the advertisement of the windin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules provides for the manner of its admission and advertisement, if any. Rule 96 of the rules reads: "96. Admission of petition and directions as to advertisement. Upon the filing of the petition, it shall be posted before the judge in chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to 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." 7. Rule 96 thus provides that the said petition will be laid before the Judge in chambers for admission and for fixing a date for hearing and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of a petition to wind up a company the judge may, if he thinks fit, dispense with any advertisement required by these rules." 9. A petition for winding up cannot be placed for hearing before the court unless the petition is advertised, which would be clear from the terms of sub-rule (2) of rule 24. Though there is a discretion vested in the judge while issuing directions to advertise a petition sub-rule (2) of rule 24 has taken away the said discretion, which mandates that a petition to wind up a company must be advertised. The requirement of the rules is that a petition for winding up of a company is mandatory and the requirement of the rule is that it shall be advertised in one of the issues of the Official Gazette of the State, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the company to oppose the same. In that context, the learned counsel for the company had urged before the Bench that the petition had not been advertised in the Gazette on the day on which advertisement in the newspaper was made, therefore, there was violation of the requirement of rule 24, which submission was turned down observing that rule 99 lays down expressly that the manner provided for advertisement in rule 24 is subject to any direction of the Court and this leaves no room for doubt that the company judge could give specific direction with respect to advertisement as he did under the impugned order and dispensed with publication in the Gazette. 13. With due respect to judges, such a view is not possible because of mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... winding up cannot be placed for hearing before the court unless the petition is advertised. 14. The method and manner of publication is provided in sub-rule (1) of rule 24 saying that it shall be advertised not less than 14 days before the date fixed for hearing; ( a ) in one issue of the Official Gazette of the State or Union Territory concerned; and in one issue each of daily newspaper in English language and a daily newspaper in the regional language circulating in the State. 15. In Plastisac (P.) Ltd. s case ( supra ), also a learned single judge of the Gujarat High Court has read the inherent power of the company court contained in rule 9 to be a power sufficient to dispense with the mandatory requirement of advertising the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall/must be advertised unless the judge otherwise orders. Exercise of discretion is implicit in this rule but is confined only to the time-limit for advertisement. The discretion, which can be exercised is relatable only to that part of the rule, which says : "...be advertised not less than fourteen days before the date fixed for hearing..." 18. Rule 24(1) also provides a particular manner in which advertisement is to be made. There is no scope for exercise of inherent jurisdiction of dispensing with such a requirement. Rule 24(1) requiring publication to be done in the Gazette and two newspapers attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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