(May 31, 2001) 2001 (TLS)125294

2001-DLT-94-777 :: 2001-AD (Del)-6-823

R. K. SAXENA Vs. Imperial forestry Corporation Limited

Devinder Gupta

( 1 ) THE question involved in this appeal is that whether the requirement of petition to be advertised in one of the issues of Official, gazette of. the State or Union Territory concerned, as provided in Rule 24 of the Companies (Court) rules, 1959 (hereinafter referred to as the rules") can be dispensed with.

( 2 ) THE facts in brief are that the- appellant filed a petition under sub-section (1) of Section 439 of the Companies Act, 1956 for winding up of the respondent Company. The said company. petition was admitted for hearing and a provisional liquidator was appointed on 10/6/1996. No direction was given to advertise the petition, as required under rule 24 of the Rules. Application (CA. 631/2000) was filed by the appellant for directions to advertise the petition prayinq further that while directing the petition to be advertised in a daily newspaper in English language and daily newspaper in regional language circulating in Delhi, requirement of advertising the petition in the Official Gazette be dispensed with. Learned Company Judge by the impugned order directed the advertisement of the winding up petition in one of the issue s of Statesman (English publication from Delhi.) and in one issue of Amar Ujala (Hindi publication from Bareilly. U. P. ). The prayer for dispensing with publication in the Official Gazette was rejected. The petition was also directed to bo advertised in the delhi Gazette. The appellant has challenged that part of the order by which prayer to dispense with advertisement in the Gazette has been rejected.

( 3 ) LEARNED counsel for the appellant contended that Rule 24 has to be read with Rule 99 of the rules. There is ample power in Rule 99 vested with the Company Court to dispense with even the mandatory requirement of Rule 24 because of the wordings of Rule 99, which says--

"subject to any directions of the court".

( 4 ) IT was urged that learned Company Judge failed to correctly appreciate the ratio of the decisions cited before him, namely, U. P. Twiga fiberglass Limited v. Parekh Marketing p. Limited (1986) 59 Company Cases 886 and Plastisac p. Limited v. Gujarat Lease Finance Limited (2000) 101 Company Cases 334.

( 5 ) SHRI S. K. Luthra, Advocate, appearing for the official Liquidator has tried to support the impugned order urging that power is not vested in the Company Judge to dispense with the mandatory requirement of advertising the petition in the Official Gazette in addition to its being advertised in the two dailies.

( 6 ) WE have duly considered the respective submissions. On a petition being filed. Rule 96 of the Rules provide for the manner of its admission and advertisement, if any. Rule 96 of the Rules reads-

"96. Admission of petition and directions as to advertisement -- Upon the filing of the petition, it shall be pasted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisements 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 advertisment of the petition. "

( 7 ) RULE 96 thus provide that the said petition will be laid before the Judge in Chambers for admission and for filing a date for hearing and for directions as to the advertisements, if any, 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. Thus the company petition on being filed, when is posted before the Company Judge for admission, he may either (a) issue notice to the company to show cause why petition be not admitted or (b) admit the petition and fix a date for