Punjab-Haryana High Court
Ashok Kumar And Ors. vs Akal Transport Co. (Pvt.) Ltd. on 25 February, 1991
Equivalent citations: [1991]72COMPCAS158(P&H), (1991)99PLR703
JUDGMENT J.V. Gupta, C.J.
1. This company appeal is directed against the order of the company judge dated May 18, 1990, whereby the company petition under Sections 433 (e), (f), 434 and 439 of the Companies Act, 1956, was dismissed.
2. Original Company Petition No. 5 of 1984 was filed on behalf of Raj Rani and minor Raj Binder through his next friend, Raj Rani. During the pendency of this petition, the present appellants moved an application, that is, Company Application No. 34 of 1987, praying therein that since the applicants have also their claim against the respondent-company, they be allowed to be added as petitioners along with Smt. Raj Rani and her son or be substituted for them. That application was allowed by the company judge, vide order dated February 10, 1989, whereby the applicants were allowed to join as co-petitioners in Company Petition No. 5 of 1984. As a result thereof, the amended petition was filed but no affidavit was filed along with that as was required under Rule 102 of the Companies (Court) Rules, 1959. Consequently, the learned company judge dismissed the said petition on the ground that "it is wholly a new claim filed by the petitioners and is virtually to be treated as a fresh or independent petition on behalf of these petitioners. Thus, it is manifest that in the absence of compliance with Rule 21, this petition, on their behalf, cannot possibly be maintained."
3. Learned counsel for the appellants submitted that the view taken by the learned company judge was wrong. The original petition filed on behalf of Raj Rani and her son was supported by an affidavit. Since it was only an amended petition, no affidavit as such was required and, in any case, if direction is given to the appellants, the necessary affidavit would be filed. On the other hand, learned counsel for the respondent-company submitted that, in view of Rule 102 of the Companies (Court) Rules, the petition was liable to be dismissed since it was not accompanied by an affidavit. In support of his contention, he referred to Mool Chand Wahi v. National Paints (P.) Ltd. [1986] 60 Comp Cas 402 (P & H).
4. After hearing learned counsel for the parties, we do not find any merit in this appeal. Rule 102 of the Companies (Court) Rules, 1959, reads as under :
"102. Procedure on substitution.--Where the judge makes an order substituting a creditor or contributory as petitioner in a winding up petition, he shall adjourn the hearing of the petition to a date to be fixed by him and direct such amendments of the petition as may be necessary. Such creditor or contributory shall, within seven days from the making of the order, amend the petition accordingly, and file two clean copies thereof together with an affidavit in duplicate setting out the grounds on which he supports the petition. The amended petition shall be treated as the petition for the winding up of the company and shall be deemed to have been presented on the date on which the original petition was presented."
5. In view of the said rule, the amended petition shall be treated as a petition for the winding up of the company and shall be deemed to have been presented on the date on which the original petition was presented. This rule further requires that the amended petition will be filed together with an affidavit in duplicate setting out the grounds on which he supports the petition. Consequently, the appeal fails and is dismissed in limine.