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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CO.APP. 13/2006

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Date of decision: 28.1.2008

M/S MEDISPHERE MARKETING P.LTD ..... Appellant

Through Mr.Arunabh Chaudhary with

Mr.Abhishek Ray, Advocates

versus

M/S MEDI TRADE MEDICAL TRADING ..... Respondent

Through Mr.Sanjiv Sachdeva, Advocate

CORAM:

HON'BLE THE CHIEF JUSTICE

HON'BLE MS. JUSTICE REVA KHETRAPAL

1.Whether reporters of local papers may be

allowed to see the Judgment ?

Yes

2. To be referred to the Reporter or not?

Yes

3.Whether the judgment should be reported in the Digest? Yes

DR. MUKUNDAKAM SHARMA, CJ : (Oral)

1.

The present appeal is filed by the appellant challenging

the findings and the conclusions arrived at by the learned Single

Judge under the order dated 7^th October, 2005. The aforesaid

order came to be passed by the learned Company Judge in a

petition filed under Sections 433, 434 and 439 of the Companies

Act by the respondent contending, inter alia, that the appellant is

indebted to the respondent and that the appellant is unable to

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pay its debt.

2.

When the said petition was filed, objections were raised

regarding the maintainability of the petition on the ground that

the affidavit annexed to the petition was not in the prescribed

form and, therefore, the said petition could not have been

entertained and was required to be dismissed on that ground

alone. The second objection was also regarding maintainability of

the petition on the ground that the power of attorney, on the

basis of which the affidavit was filed by one Shri Pankaj

Sachdeva, is not stamped and, therefore, no affidavit could have

been filed in support of the Company Petition by a person on the

basis of such unstamped document.

3.

Both the aforesaid contentions were argued at length

before the learned Company Judge. By the impugned order,

however, the learned Company Judge held that so far as the issue

with regard to the affidavit not being in accordance with the

prescribed form is concerned, the same is only a curable defect

and, therefore, could be cured by directing for amendment of the

said affidavit.

4.

So far as the second contention is concerned, the learned

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Company Judge held that the said power of attorney if not duly

and properly stamped, this could be subsequently rectified by

resorting to the provisions of impounding a document and

directing the concerned authority to pay the penalty in

accordance with the prescribed law. With regard to the allegation

of fraud on the part of Shri Pankaj Sachdeva in asserting in

rejoinder that the power of attorney was duly stamped the Court

held that there was no fraud but only a bona fide mistake and,

therefore, the same was not fatal.

5.

The said findings are under challenge in this appeal on

which we have heard the learned counsel appearing for the

parties.

6.

So far as the contention with regard to power of attorney

not being duly stamped and the affidavit being filed on the basis

of an unstamped document is concerned, there is a statement

made in rejoinder by Shri Pankaj Sachdeva that the power of

attorney is duly stamped and registered as per law. The said

statement on the face of it is incorrect, for the power of attorney

admittedly was not stamped at all as on that date when the said

statement was made. The rejoinder was filed on 7^th January, 2004

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and the said document came to be impounded and subsequently

stamped on 19^th/22^nd April, 2004. Therefore, there is no doubt

that the said document on the date of swearing of the affidavit by

the deponent was not a stamped document and in fact was an

unstamped one. However, we cannot lose sight of the fact that

as and when such unstamped document is relied upon and

referred to in any proceedings, ther