K.Raviraja Pandian, J.

This appeal is filed against the order of the Company Court dated 08.04.2009 made in CP No.51 of 2007 ordering winding up of the appellant company under the provisions of the Companies Act, 1956 and directing to advertise within 14 days a notice in the prescribed form of making of the order of winding up in one issue of Tamil Daily "Dinamani" and another two issues in the English daily "Indian Express" and the "Times of India" (All India Edition) and other peripheral directions.

2. The above said winding up order is assailed by the appellant on several grounds. The primal and material ground on which the order of the Company Court is challenged, is that none of the statutory provisions, which are mandatory in nature for ordering winding up of the company, has been not only taken note of, but also followed in this case. Even without admitting the company petition, the winding up order has been passed, which is ex facie an illegal order as it is against the requirements of the statutory provisions i.e., Rules 96 and 99 of the Companies (Court) Rules, 1959 and the impugned order is quite contrary to section 443(2) of the Companies Act.

3. Learned counsel for the respondent-company petitioner has also not disputed the factum that the company petition was neither admitted nor the mandatory statutory provisions were followed in this case. But it was argued on behalf of the respondent-company petitioner that this Court, being the first appellate Court, can cure the defect of non admission of the company petition and failure of causing publication of the company petition as per the requirement of the Companies (Court) Rules, 1959. It is also submitted that if the Court is intended to remit the matter to the Company Court for redoing the exercise, the exercise being procedural in nature, this Court may request the Company Court to keep in tact the finding recorded for ordering winding up and remit the matter to the Company Court for purpose of completing the procedural lacuna explicit in the order of the Company Court.

4. Heard the learned counsel on either side and perused the materials available on record.

5. There is no dispute about the way in which the order of winding up is passed by the company Court, i.e., the order of the company Court is passed without following the mandatory statutory provisions, which is evident from paragraph 5 of the order, wherein the Company court has categorically stated that on notice, the respondent has filed its counter disputing the averments contained in the company petition". Upon hearing the parties on pre-admission notice stage the impugned order of winding up is passed.

6. Rule 96 of the Companies (Court) Rules, 1959 read as under :

Upon the filing of the petition, it shall be posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisement 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.

Rule 24 which refers to advertisement of petition provides :

.(1) Where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these Rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State or the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper in the regional language circulating in the State or the Union Territory concerned, as may be fixed by the Judge.

.(2) Except in the case of a petition to wind up a company, the Judge may, if he thinks fit, dispense with any advertisement required by these Rules.

It is explicit from the above Rules that when a petition is filed in the company Court for winding up of a