TMI Blog2008 (1) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... e it would be a question of fact. These aspects, in our view, are required to be considered by the learned Company Judge on the basis of the facts and the pleadings before the learned Company Judge and, therefore, to the aforesaid extent we set aside the order passed by the learned Company Judge in respect of the affidavit and remand back the matter to the learned Company Judge to consider the same in accordance with law. - CO. APP. 13 OF 2006 - - - Dated:- 28-1-2008 - DR. MUKUNDAKAM SHARMA AND MS. REVA KHETRAPAL, JJ. Arunabh Chaudhary and Abhishek Ray for the Appellant. Sanjiv Sachdeva for the Respondent. JUDGMENT Dr. Mukundakam Sharma, CJ. - The present appeal is filed by the appellant challenging the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge held that the said power of attorney if not duly and properly stamped, this could be subsequently rectified by resorting to the provisions of impounding a document and directing the concerned authority to pay the penalty in accordance with the prescribed law. With regard to the allegation of fraud on the part of Shri Pankaj Sachdeva in asserting in rejoinder that the power of attorney was duly stamped, the Court held that there was no fraud but only a bona fide mistake and, therefore, the same was not fatal. 5. The said findings are under challenge in this appeal on which we have heard the learned counsel appearing for the parties. 6. So far as the contention with regard to power of attorney not being duly stamped and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be relied upon cannot be faulted. 7. So far as the issue with regard to fraud and misrepresentation played by Shri Pankaj Sachdeva and, therefore, the petition being not maintainable is concerned, in our considered opinion, it cannot be said that it was a fraud or misrepresentation only on the basis of a statement made by Shri Pankaj Sachdeva to the said effect. There was no attempt or effort on the part of Shri Pankaj Sachdeva to derive any undue benefit by making the aforesaid statement, which was otherwise not available to the appellant. In our considered opinion also no prejudice was caused to the appellant by such an incorrect statement made by the power of attorney holder and, therefore, we find no error in the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and irregularity in filing an affidavit. In the said decision, the Supreme Court has held that substantial compliance should be enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. The Supreme Court, however, held that the rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially complies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition. 11. Reference may be also made to the decision in Mrs. Roma Deb v. R.C. Sood Co. (P.) Ltd. [1986] 1 ILR (Delhi) 498, wherein a learned Single Judge of this Court dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be cured, ( ii ) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true, ( iii ) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and ( iv ) the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under section 81(3) as indicated earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up." 14. A company petition for an order of winding up thus relates back to the date of presentation of the petition and if the period of limitation is in any manner affected, Rule 21 and Form No. 3 may have some relevance in the context of the provisions of sub-section (2) of section 441. In the event of dealings by the Company with its assets between the date of presentation of the winding up petition and the date when a valid petition comes into existence after re-verification of the same, third parties may have acquired valuable rights in the company s assets, which, it may be difficult to assail or set aside. The winding up order would come into existence on the date of such re-verification and this would create a good deal of con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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