Back
2006(5) Supreme 452
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. AR. Lakshmanan and Lokeshwar Singh Panta, JJ.
M/s. Associated Journals Ltd. — Appellant
versus
The Mysore Paper Mills Ltd. — Respondent
Civil Appeal No. 183 of 2000
Decided on 11-7-2006
Counsel for the Parties :
For the Appellant : M/s. J.B. Dadachanji & Co., Advocates.(N.P.).
For the Respondent : Ms.. Pragya Singh Baghel, Debmalya Benerjee, R.N. Karanjawala and Mrs. Manik Karanjawala, Advocates.
Held : A careful perusal of the affidavit filed by the respondent and Form No.3 as prescribed under Rule 21 would show that there is substantial compliance of the said Rule. A Three-Judge Bench of this Court in an identical matter in Malhotra Steel Syndicate vs. Punjab Chemi-Plants Ltd., (1993) Suppl. 3 SCC 565 has also opined that even if there is some slight defect or irregularity in the filing of affidavit, the appellant should have been given an opportunity to rectify the same. In the instant case, the same liberty was given to the respondent by the Company Judge as also by the Division Bench of the High Court. We are, therefore, of the opinion that the Division Bench was right in dismissing the appeal filed by the appellant. This Court has in catena of decisions held that substantial compliance is enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. 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. In the instant case, both the learned Company Judge and also the Division Bench were of the opinion that there is substantial compliance of Rule 21.(Paras 21 and 22)
We are of the opinion that the Rules of procedure cannot be a tool to circumvent the justice. In fact, the Rules are laid to help for speedy disposal of justice. The learned Judges of the Division Bench has appreciated that the technical plea raised by the respondent regarding defective affidavit was raised after seven years of filing the petition. The learned counsel submitted that the appellant is raising the defence of technical plea to protect himself from the consequence of his default and this plea cannot be considered effective enough to review the order of advertisement. Assuming without admitting that the affidavit was not verified as per the Company Rules, the learned counsel has correctly submitted that if this objection was taken earlier the respondent would have cured the defect. For the aforesaid reasons, we are of the opinion that the appeal has no merit and the order passed by the learned Judges of the Division Bench confirming the order passed by the Learned Company Judge does not call for any interference by this Court.(Paras 23 and 24)
JUDGMENT
Dr. AR. Lakshmanan, J. — None appears for the appellant despite service of notice on the appellant.
2. It appears that the previous counsel sought direction from this Court to discharge him as advocate-on-record. Notice was also sent by speed post A.D./Courier to M/s Associated Journals Ltd., Lucknow, U.P. and M/s Associated Journals Ltd., New Delhi requesting them to contact them otherwise they will not be in a position to attend to the above matter and will seeks direction from this Court for discharge as advocate-on-record. When the matter was taken up for hearing on 12.04.2006, a submission was made by the learned counsel appearing for the appellant that no reply has been received from the addressee till date and, therefore, further time may be granted. The matter was adjourned by four weeks. Even today, there is no representation on behalf of the appellant. The counsel is also not present in the Court.
3. We have heard Ms. Pragya Singh Baghel, learned counsel appearing on behalf of the respondent and also perused the original record which has been received from the High Court.
4. This appeal is directed against the final judgment and order dt. 27.10.1997 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Company Appeal No.1 of 1994. By the said order, the High Court dismissed the said Company Appeal holding inter alia that the learned Company Judge did not commit any error of law in allowing the appellant to file fresh affidavit to remove the defects in verification of the company petition. The High Court further held that the finding of the learned Company Judge regarding the sufficiency of the reasons for advertisement were not final.
5. The said Company Appeal No.1 of 1994 which has been dismissed by the High Court had been filed by the appellant herein against the order dt.10.01.1994 passed by the learned Company Judge of the said Court in Company Petition No.3 of 1987 whereby the respondent, namely, the Mysore Paper Mills Ltd. were directed to file a fresh affidavit to remove the defect in the verification accompanying the said Company Petition and thereafter for the listing of the petition for passing orders regarding advertisement.
6. We have perused the grounds of appeal filed in this Court. It is stated in the grounds that the learned Company Judge had reached a prima facie conclusion that the debt being claimed by the respondent in the Winding Up Petition was payable by the appellant and that the defence purported to be raised on behalf of the respondent company was not a bona fide defence and cannot be validly considered effective enough to refuse the order of advertisement. The respondent was allowed to file a fresh affidavit correcting the defect in the verification of the Winding Up Petition filed by the respondent and further fixed the Winding Up Petition for passing orders regarding advertisement.
7. The case of the appellant company has been that the sum of money claimed by the respondent in the Winding Up Petition was not outstanding inasmuch as the said sum of money had already been paid to M/s General Trading & Sales Corporation who were the mutual agent of the appellant and the respondent. Hence no debt was due and payable by the appellant to the respondent. There was, therefore, no question of the appellant company being unable to pay any debts to the respondent. The Winding Up Petition filed by the respondent was, therefore, wholly without any basis or foundation in law and hence not maintainable.
8. Company Appeal No.1 of 1994 was filed against the order dt.10.01.1994 passed by the Company Judge in Company Petition No.3 of 1987. In the said appeal, the appellant had challenged the order of Company Judge on several grounds. We are not now considering the merits of the grounds alleged in this appeal since it is premature for this Court to deal with the same at this stage.
9. It is submitted by the appellant that in view of the mandatory statutory provisions of R
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
