Verification of a winding up petition must strictly comply with the rules for verification of the same, and a mere declaration before a notary public is not an affidavit according to the Companies (Court) Rules, 1959, and the Code of Civil Procedure.

1. THIS is an application for winding up of Gaya Textiles Private Limited (hereinafter referred to as the company). The petitioner's case is that sometime in April 1964 the Company entered into a contract in writing with the petitioner under which the Company agreed to buy and take delivery from the petitioner 2 ring frames. The company agreed to pay 25 per cent of the price in cash with the order and balance of the price against delivery or Railway Receipt or any other documents through Bank. It is alleged that it was also agreed that one ring frame materials with short bottom apron arrangements and one ring frame materials with long bottom apron arrangements would be supplied by the petitioner to the Company. Under the 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 Rs. 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 Rs. 14,772. 24 and Rs. 16,312. 86 aggregating to a sum of Rs. 31,085. 10 being the balance of price after giving credit to the Company for the said sum of Rs. 8,730/-

It is alleged that the goods were duly delivered to the Company, who wrongfully failed and neglected to pay the said bills or any portion thereof in spite of demands. It is also alleged that by a letter dated January 3, 1965, the Company inter alia admitted the erection of the said two ring frames supplied by the petitioner at its mills in pursuance of the contract between the parties. The petitioner thereafter sent several letters and telegrams demanding payment of the balance of the price of the ring frames sold and delivered to the Company. On or about June 17, 1965, one Rohit Mehta and one a K. Ghosh of Textile Engineering and Trading Agency, who was the sole selling agent of the petitioner, met two of the Directors of the Company at its registered office, when the latter promised to pay a sum of Rs. 32,361. 18. This was followed by the statutory demand notice for the amount claimed and thereafter this petition was presented and usual directions obtained far advertisements.

3. LEARNED counsel for the Company contended that no order could be made on the petition as the affidavit verifying the petition was not affirmed according to law. He argued that the affidavit verifying the petition was not affirmed at all but a declaration was made before a notary public and therefore there was no affidavit verifying the petition and for that reason no order can be made on the present petition.

4. IT appears that the 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 la the relevant rules for verification of petitions 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 petition must be made on a solemn affirmation as prescribed by form No. 3. Under Rule 18 (a) of the company Rules the affidavit verifying the petition is to be signed by the deponent and sworn to in the manner prescribed by the Code or by Rules and practice of the Court. Under Rule 5 of chapter XV of the Original Side Rules of this Court affidavit for use in any of the jurisdictions of the Court may be taken in Calcutta or within five miles thereof before a Commissioner, generally or specially