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Mvi. Ahmadur Rahman and ors. Vs. Registrar of Companies - Court Judgment

LegalCrystal Citation
Subject;Company
CourtGuwahati High Court
Decided On
Case NumberMA(F) Nos. 47 of 1971 and 30 of 1972
Judge
ActsCompanies (Court) Rules, 1959 - Rules 24, 96 and 99
AppellantMvi. Ahmadur Rahman and ors.
RespondentRegistrar of Companies
Appellant AdvocateB.S. Guha, Adv.
Respondent AdvocateG.K. Talukdar, Sr. Government Adv.
DispositionAppeal allowed
Excerpt:
- - the main point that arises for consideration in these appeals is whether the impugned order dated july 27, 1971, is bad for non-compliance with rule 96 and some other rules of the companies (court) rules, 1959, hereinafter called the rules. a petition for winding up cannot be placed for hearing before the court, unless the petition is advertised ;that is clear from the terms of rule 24(2).'13. the law is well-settled that a petition for winding up of a company cannot be placed for hearing before the court unless the petition has been advertised as required under the rules......these two appeals are directed against the order dated july 27, 1971, passed by the learned single judge in company petition no. 6 of 1970.2. the registrar of companies, assam, tripura, manipur and nagaland, filed a petition in the high court under sections 433 and 439 of the companies act, 1956, for winding up of the appellant-company, the east bengal hindu-moslem planters ltd., on the ground that the financial position of the company, as revealed from the balance-sheet, showed a deficit of rs. 10,83,68-43 and the company was, therefore, unable to pay its debts. the petition was registered and numbered as company petition no. 6 of 1970. on april 20, 1970, notice was issued to the company by court's order and it appeared through mr. b. s. guha, the learned counsel. the case was adjourned.....
Judgment:

M.C. Pathak, J.

1. These two appeals are directed against the order dated July 27, 1971, passed by the learned single judge in Company Petition No. 6 of 1970.

2. The Registrar of Companies, Assam, Tripura, Manipur and Nagaland, filed a petition in the High Court under sections 433 and 439 of the Companies Act, 1956, for winding up of the appellant-company, the East Bengal Hindu-Moslem Planters Ltd., on the ground that the financial position of the company, as revealed from the balance-sheet, showed a deficit of Rs. 10,83,68-43 and the company was, therefore, unable to pay its debts. The petition was registered and numbered as Company Petition No. 6 of 1970. On April 20, 1970, notice was issued to the company by court's order and it appeared through Mr. B. S. Guha, the learned counsel. The case was adjourned on several dates at the instance of the learned counsel for the company. On July 27, 1971, the following order was passed by the learned single judge :

' The learned Government Advocate on behalf of the Registrar of Companies submits that necessary formalities have all been complied with, including obtaining sanction of the Central Government under the second proviso to Sub-section (5) of Section 439 of the Companies Act.

Mr. B. S. Guha, the learned counsel appearing for the company, does not object to this petition for winding up.

I, accordingly, order winding up of this company, intimation whereof will be sent to the official liquidator and the Registrar of Companies.'

3. By the above two appeals the said order of the learned single judge has been challenged. MA(F)47/71 has been filed by the East Bengal Hindu-Moslem Planters Ltd. and MA(F)30/72 has been filed by (1) Mvi. Ahmadur Rahman, (2) Nripendra Nath Sarma, (3) Monoranjan Bose, (4) Anil Ranjan Bose and (5) The East Bengal Hindu Moslem Planters Ltd.

4. Various grounds have been taken in both the appeals. The main point that arises for consideration in these appeals is whether the impugned order dated July 27, 1971, is bad for non-compliance with Rule 96 and some other Rules of the Companies (Court) Rules, 1959, hereinafter called the Rules.

5. Part III of the Companies (Court) Rules, 1959, deals with winding up by court. Rule 96 reads as follows :

' 96, Admission of Petition and directions as lo advertisement.--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 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 advertisement of the petition.'

6. In the instant case no advertisement as required under Rule 96 was either published or was directed to be published.

7 Rule 99 reads as follows :

' 99. Advertisement of petition.--Subject to any directions of the court, the petition shall be advertised within the time and in the manner provided by Rule 24 of these Rules. The advertisement shall be in Form No. 48.'

8. Rule 24 reads as follows :

'24. Advertisement of petition.--(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.'

9. Under Form No. 48 notice has to be given of the petition for winding up a company by the High Court to any creditor, contributory or other person desirous of supporting or opposing the making of an order on the said petition.

10. On consideration of the provisions of Rules 96, 99, 24 and Form No. 48 it is clear that when a petition for winding up a company is filed in court, it shall give directions as to advertisement to be published in accordance with the relevant rules.

11. In view of Sub-rule (2) of Rule 24, the publication of the advertisement of a petition to wind up a company cannot be dispensed with.

12. In the instant case no advertisement as required by Rule 96 read with Rules 99 and 24 and Form No. 48 was published. That being the position, the impugned order of winding up of the company is not legally sustainable. This view is supported by the decision in National Conduits (P.) Ltd. v. S.S. Arora, [1967] 37 Comp. Cas. 786, [1968] 1 S.C.R. 430, A.I.R. 1968 S.C. 279, wherein the Supreme Court has observed (at page 281) as follows :

' When a petition is filed before the High Court for winding up of a company under the order of the court, the High Court : (i) may issue notice to the company to show cause why the petition should not be admitted ; (ii) may admit the petition and fix a date for hearing and issue a notice to the company before giving directions about advertisement of the petition ; or (iii) may admit the petition, fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon the persons specified in the order. A petition for winding up cannot be placed for hearing before the court, unless the petition is advertised ; that is clear from the terms of Rule 24(2).'

13. The law is well-settled that a petition for winding up of a company cannot be placed for hearing before the court unless the petition has been advertised as required under the rules.

14. In the instant case the petition for winding up of the company was placed before the court for hearing without any direction for advertisement under the Rules.

15. In the circumstances we set aside the impugned order of winding up of the appellant-company and remand the case to the learned single judge for disposal of the petition for winding up of the company in accordance with law.

16. Mr. G.K. Talukdar, the learned Senior Government Advocate, appearing for the respondent, submitted that the appeal petition in MA(F) No. 47/71 was barred by limitation. The learned counsel submitted that no certified copy of the order was necessary under the High Court Rules for filing an appeal under the Letters Patent and as such the time requisite for obtaining certified copy of the order could not be taken into consideration in computing the period of limitation. It is however found that if the time

requisite for obtaining the certified copy which has been filed along with the appeal is taken into consideration, the appeal is not time barred. The learned counsel for the appellant submitted that the appellant was under the impression that a certified copy of the order was necessary to be filed in the appeal and therefore the delay, if any, may be condoned in view of the facts and circumstances of the case. We find that there is substance in the submission of the learned advocate for the appellant.

17. That apart, by MA(F) No. 30/72 the same impugned order has been challenged and the delay in filing this appeal has been already condoned by the court's order dated May 12, 1972.

18. In the circumstances we hold that the submission of the learned counsel for the respondents regarding the limitation has no substance.

In the result the impugned order of winding up of the company is set aside. Both the appeals are allowed and the case is remanded. We pass no order as to costs.

Baharul Islam J.

19. I agree.


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