TMI Blog1966 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed that one ring frame materials with short bottom apron arrangements and ona ring frame materials with long bottom apron arrangements would be supplied by the petitioner to the Company. Under tha terms of the agreement after satisfactory working of the said 2 ring frames, the Company was to confirm a provisional order for -38 other ring frames. 2. Pursuant to the contract the Company paid the sum of ₹ 8,730 being 25 per cent of the price of the said two frames. The petitioner sent the two ring frames to the Company on or about September 30, 1964 and sent the documents and demand drafts for two sums of ₹ 14,772.24 and ₹ 16,312.86 aggregating to a sum of ₹ 31,085.10 being the balance of price after giving cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition was not verified by an affidavit at all, but by a declaration. Secondly this declaration appears to have been made before a notary public at Bombay on December 24, 1965 I shall now refer to the relevant rules for verification of petition? under the Companies (Court) Rules, 1959, (hereinafter referred to as the Company Rules) and also under the rules of this Court. Rule 21 of the Company Rules requires that every petition shall be verified by an affidavit made by the petitioner or in the case of a petition by a body corporate, by a director, secretary or other principal officer. Such an affidavit has to be made in Form No. 3 which provides that the affidavit shall be made on solemn affirmation. Therefore, an affidavit verifying a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a solemn affirmation on which alone an affidavit can be made. For these reasons, the declaration at the bottom of the petition does not comply with rules requiring verification of the petition and it must, therefore, be held that there is no verification of the winding op-petition 6. Learned Counsel for the petitioner, however, contended that the defect in the verification of the petition was a mere irregularity which should be overlooked, and leave should be granted to the petitioner to re-verify the petition, according to the rules. In support of this contention, learned counsel for the petitioner firstly relied upon a decision of the Allahabad High Court reported in AIR1925All79 in which it was held that a plaint was not void me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not assist the petitioner in this case as the affidavit was property affirmed, but was defective for want of a date and also for want of enumeration of the paragraphs which were based on information 8. The next case relied upon by the learned counsel for the petitioner is a decision of this Court reported in 9 CWN 608 in which the verification of a plaint was defective and it was held that the plaint should not have been rejected, but leave should have been granted to amend it. As I stated earlier, statements in the plaint are not to be acted upon by the Court except upon proof of the same by evidence or upon admission by the defendant. A plaint, therefore, stands on an entirely different footing from a petition so far as verificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. If on the date when the petition was presented there was no proper verification according to law, then there was no petition at all on which the Court could issue directions for advertisement. Secondly, if leave is granted to cure the verification today, then a proper petition for winding up of the Company would come into existence as from today, and in that event the question of dealings by the Company with its assets between the date of presentation of the winding up petition and the date when the Court grants the Company leave to re-verify the petition would also create a good deal of confusion. Since a winding up order relates back to the date of presentation of the winding up petition, all dealings by the Company with its assets wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the petitioner are not attracted and do not assist the petitioner. Counsel for the petitioner admitted, and I think rightly, that the verification was defective and the Court could not make an order for winding up on this petition, and it was for that reason that he asked for leave to re-verify the petition. That being the position, in my opinion, re- verification of a winding up petition cannot be allowed, particularly because in this case the verification appears to have been done before a notary public, who under the rules is not an officer before whom a petition could be verified under the rules of this Court as also under the Companies (Court) Rules, 1959. For the reasons mentioned above, the Court cannot proceed to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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