TARUN CHATTERJEE, J.

( 1 ) WHEN some argument was advanced by learned counsel for the parties on the question of grant of interim relief, learned counsel for the parties suggested to us that instead of disposing of the application for grant of interim relief, the appeal itself could be taken up for hearing by treating the appeal on the date the application for grant of interim relief was taken up for hearing. Accordingly the appeal was taken up for hearing along with the application for grant of interim relief.

( 2 ) THIS is an appeal from an order passed by a learned company judge of this court on February 6, 2002 in C. P. No. 41 of 2002 whereby and whereunder the petition for winding up filed at the instance of the petitioning creditor/appellant was admitted for a sum of Rs. 47,74,242. It appears from the impugned order also that the learned company judge gave liberty to the petitioning creditor/appellant to institute such proceedings as it may be advised to realise its alleged dues against the company, if any, either by way of interest or otherwise. Liberty was also given to the respondent-company to pay a sum of Rs. 5,00,000 on or before February 28, 2002. It was further directed that the balance sum shall be paid by the company in monthly instalments of Rs. 5,00,000 and the first of such instalment shall commence on and from March 15, 2002, and thereafter on the 15th of each month till the entire dues were paid. In default of any of the payments, as directed, the petitioning creditor/appellant shall be at liberty to publish advertisements once in The Statesman and once in Bartaman and however publication in the Official Gazette was dispensed with.

( 3 ) FEELING aggrieved by the impugned order of the learned company judge refusing to grant interest at the rate of 21 per cent. per annum after expiry of 60 days from the submission of the bill in question, this appeal has been preferred by the petitioning creditor/appellant.

( 4 ) BEFORE us, Mr. Basak, learned counsel appearing for the respondent, submitted that in view of Section 69 (2) of the Partnership Act, 1932, the application for winding up of the company filed by the petitioning creditor which is an unregistered partnership firm was not maintainable in law. In support of this contention Mr. Basak relied on a single Bench decision of this court in the case of Deb Paints P. Ltd. v. Universal Lime Industries [2002] 110 Comp Cas 429; [2002] 1 Cal LT 94. Mr. Basak further contended that in view of Rule 21 of the Companies (Court) Rules, 1959, the petition for winding up was not maintainable in law as no leave was taken by the petitioning creditor for filing the winding up petition by a constituted attorney of the petitioning creditor. In support of this contention Mr. Basak relied on a single Bench decision of the Bombay High Court in the case of Shantilal Khushaldas and Bros. Pvt. Ltd. v. Smt. Chandanbala Sughir Shah [1993] 77 Comp Cas 253. So far as these submissions of Mr. Basak are concerned, Mr. Tiwari appearing on behalf of the petitioning creditor submitted before us that this submission cannot be permitted to be raised by the company respondent as no appeal has been preferred against the impugned order passed by the learned company judge. In the event we permit the respondent to raise the question of maintainability of the winding up petition by an unregistered partnership firm before us and in case we hold that the application for winding up of the company at the instance of the unregistered firm is not maintainable in law, in that case it would not be proper for us to deal with the merits of this appeal. Before we consider whether the winding up petition at the instance of an unregistered firm was maintainable in law or not, we may deal with another submission of Mr. Tiwari, learned advocate appearing for the appellant that the respondent cannot be permitted to raise the aforesaid question in appeal as the respondent has not challenged the finding of the lear

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