TMI Blog2018 (9) TMI 1704X X X X Extracts X X X X X X X X Extracts X X X X ..... vertisement, this time in the correct name of “Splendour Gems Limited” (formerly known as “Beautiful Diamonds Limited”); (c) We make it clear that we have not examined the merits of the matter, therefore, all contentions of all parties are left open for decision by the learned Company Judge; (d) Parties to appear before the learned Company Judge on 15th October, 2018 at 11.00 a.m. and produce an authenticated copy of this order. - APPEAL (L) NO. 311 OF 2018 IN COMPANY PETITION NO. 829 OF 2003 - - - Dated:- 26-9-2018 - A. S. OKA AND M. S. SONAK, JJ. Mr. Zal Andhyarujina a/w Ms. Shruti and Ms. Sapna Rachure i/b T. N. Tripathi Co. for the Appellant. Mr. Prakash Panjabi for the Respondent. JUDGMENT [ PER M. S. SONAK, J.] 1. Heard learned Counsel for the parties. 2. Admit. With the consent of the learned Counsel for the parties, the appeal is taken up for final disposal. 3. The challenge in this appeal is to the order dated 21st June, 2018, by which the learned Company Judge has allowed Company Petition No. 829 of 2003 instituted by the respondent in terms of prayer clauses (a) and (b), which read as under : (a) that the Company Splendour Gems Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is set out in part III of the said rules comprising inter-alia Rule 95 to Rule 338. Rule 95 provides that the petition for winding up a company shall be in form No. 45, 46 and 47, as the case may be with such variations as the circumstances may require and shall be presented in duplicate. The Registrar is then to note on petition the date of its presentation. 8. Rule 96, inter-alia provides that upon filing of the petition, it shall be posted before the Judge in the chamber for admission of the petition and the fixing of the date for hearing thereof and for directions as to the advertisement 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. 9. Rule 99 provides that subject to any directions of the Court, the petition shall be advertised within a time and in the manner provided by rule 24 of these rules and the advertisement shall be in Form No.48. 10. Form 48 appended to the said rules reads as follows : FORM NO. 48 [See Rule 99] [Heading as in Form No.1] Company Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chancery Division, Companies Court in Applied Data Base Ltd. Vs. Secretary of State for Trade and Industry [1995] 1 BCLC 272 in the following terms: Advertisement serves more than one purpose. One purpose is to enable creditors and other interested parties to attend and bring before the court material relevant to its determination whether or not to make the winding up order sought. But another purpose is to tell the public what they are entitled to know, namely, that a petition has been presented against the company, and accordingly as a warning to the public that any dealing with the company should take place with that caution in mind. The advertisement may have serious consequences for the company because this warning may be taken very seriously, but this is no more than what those dealing with the company are entitled to. The advertisement is not notice that the company will be wound up, but that the petition has raised a serious question whether such an order ought to be made. If the petition does not raise such a serious question, the presentation of the petition will constitute an abuse of process and on application by the company the court will restrain adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue notice to the company to show cause as to why the same should not be admitted; or it may admit the petition and fix a date for hearing and issue notice to the company before issuing directions about advertisement of the petition; or it may admit the petition, fix date of hearing, and order the petition to be advertised and served upon persons specified in the order. However, the Apex Court has made it clear that in terms of Rule 24(2), a petition for winding up cannot be taken up for final hearing before the court unless such petition is advertised. 16. Similarly, in Ahmadur Rahman and others Vs. Registrar of Companies 1973(43) Company Cases 522 , the Division Bench of the Gauhati High Court held that, where an order for winding up was made without publishing advertisement about the petition for winding up as provided in rule 96 read with rules 24, 99 and Form No.48 of the said rules, the order for winding up was vulnerable. 17. In Falcon Gulf Ceramics Ltd. Vs. Industrial Designs Bureau 1996(86) Company Cases 207 , the Division Bench of the Rajasthan High Court, while holding that the provision for advertisement of a company petition before a final winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e winding up proceedings and therefore, this is some case where the appellant seeks to take advantage of its own lapse. Rather than go into this dispute, we cannot but note that the petition for winding up of a company, once admitted ceases to be a proceeding between the petitioner and the company concerned but such proceeding assumes a representative character. Therefore, such a petition, once admitted concerns all parties referred to in Form48 who may be interested in either supporting or opposing the petition for winding up. Necessarily therefore, the provisions relating to advertisement of an admitted petition for winding up of a company will have to be construed from such perspective. 21. There was no factual dispute that the name of the appellant was changed from Beautiful Diamonds Limited to Splendour Gems Limited . The issue as to whether such change was validly effected or not, really does not arise in a proceedings of the present nature. The only issue involved in the present proceedings is whether the company could have been ordered to be wound up, when admittedly, the advertisement issued in terms of the said rules, made no reference whatsoever to the changed name ..... X X X X Extracts X X X X X X X X Extracts X X X X
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