TMI Blog2009 (7) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... supported by the statute, thus the order impugned in this appeal is set aside the matter is remitted to the company court to pass orders on the petition in accordance with the statutory provisions. - ORIGINAL SIDE APPEAL NO. 89 OF 2009 - - - Dated:- 10-7-2009 - K. RAVIRAJA PANDIAN AND P.P.S. JANARTHANA RAJA, JJ. T.K. Seshadri and T.K. Bhaskar for the Appellant. Arvind P. Datar for the Respondent. JUDGMENT K. Raviraja Pandian, J. - This appeal is filed against the order of the company court dated 8-4-2009, made in C.P. No. 51 of 2007 ordering winding up of the appellant-company under the provisions of the Companies Act, 1956 and directing to advertise within 14 days a notice in the prescribed form of making of the order of winding up in one issue of Tamil daily Dinamani and another two issues in the English daily The New Indian Express and The Times of India (all India edition) and other peripheral directions. 2. The abovesaid winding up order is assailed by the appellant on several grounds. The primal and material ground on which the order of the company court is challenged, is that none of the statutory provisions, which are mandatory in nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven to the company before giving directions as to the advertisement of the petition." 7. Rule 24 which refers to advertisement of petition provides : " Advertisement of petition. Where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper in the regional language circulating in the State or the Union Territory concerned, as may be fixed by the Judge. (2) Except in the case of a petition to wind up a company, the Judge may, if he thinks fit, dispense with any advertisement required by these rules." 8. It is explicit from the above the rules that when a petition is filed in the company court for winding up of a company, the court ( i ) may issue notice to the company to show cause why the petition should not be admitted; ( ii ) may admit the petition and fix a date for hearing, and issue a notice to the company before giving directions about the advertisement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... device to pressurise the company to submit to an unjust claim. This is a sufficient safeguard against the mala fide action and the company would not suffer any consequence as apprehended. This inbuilt safeguard under the Act and the rules would save the company from adverse consequences if a petition is presented with ulterior motive [ see NEPC Micon Ltd. v. Hindustan Thompson Associates Ltd. [1999] 95 Comp Cas. 532 (Mad.)]. 10. Admittedly, in this case, none of the above mandatory statutory provisions are followed. On pre-admission notice and upon hearing the appellant-company it was directed to be wound up. 11. Where a statute requires to do a certain thing in a certain way, the thing must be done in that way and all other methods of performance are necessarily forbidden [ see A.R. Antulay v. Ramdas Sriniwas Nayak AIR 1984 SC 718]. 12. Any order passed against the principles of natural justice or in violation of a statutory provisions is regarded to be illegal. "Legality" and "regularity" are well understood terms and well recognised grounds for interference, on appeal or revision. An order is illegal, if it is opposed to any enactment or any rule having the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the enforcement of the charge." (p. 636) 15. Likewise, in P. Purushottam Reddy s case ( supra ) the decree was granted by the trial court in a specific performance suit. On appeal, the High Court, having found that no plea was taken that the suit for specific performance was not maintainable for non-compliance with Form Nos. 47 and 48 of the Appendix A to the Civil Procedure Code, and having found that there was no specific issue framed by the trial court that whether the plaintiff was ready and willing to perform his part of the contract, set aside the decree granted by the trial court and the matter is remitted for re-consideration. After referring to the Order 41 prior to and subsequent to 1976 amendment, it was observed by the Supreme Court that in view of the express provision of Order 41, rule 23A, the High Court cannot have recourse to its inherent power to make a remand as the inherent power can be availed of ex debito justitiae only in the absence of express provision in the Code. It is only in exceptional cases, where the court may now exercise the power of remand de hors the rules 23 and 23A. To wit, the superior court, if finds the judgment under appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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