MOOL CHAND WAHI Vs. NATIONAL PAINTS PRIVATE LTD

JUDGEMENT

(1.) A petition under Sections 433, 434 and 439 of the Companies Act, 1956 (hereinafter called "the Act"), filed by the appellant for winding up of the companies, respondent No. 1, was dismissed by the learned single judge, vide judgment dated November 3, 1983, (Mool Chand Wahi v. National Paints P. Ltd, [1986] 60 Comp Cas 198 (P and H)) on the ground that it was not accompanied by the proper affidavit. The appellant has filed the present company appeal under Section 483 of the Act against this judgment.

(2.) CERTAIN facts on the record are undisputed and have in fact been candidly admitted by Mr. M. S. Ratta, the learned counsel for the appellant, which may thus be noticed. The company petition was accompanied by an affidavit dated February 20, 1980, which was not in proper form. In its verification clause, paras 1 to 14 of the affidavit were mentioned to have been true and correct to the best of the deponent's knowledge and belief. The appellant in accordance with law was required to specify which paragraphs of the affidavit were correct to the best of his knowledge and which were correct to his belief. Rule 11 (a) of the Companies (Court) Rules, 1959 (hereinafter called "the Rules"), defines "petitions". A petition under Section 439 of the Act for winding up of a company is mentioned in Sub-rule (15) of the said rule. Rule 21 prescribes that every petition shall be verified by an affidavit made by the petitioner and such affidavit shall be filed along with the petition and shall be in form No. 3, which, in turn, prescribes that the petitioner shall mention the paragraphs of the petition which are true to his knowledge and the paragraphs which are based on information and he believes them to be true. Rule 18 lays down that every affidavit shall be signed by the deponent and sworn to in the manner prescribed by the Code of Civil Procedure (hereinafter called " the Code") or by the rules and practice of the court. Order XIX, Rule 3 of the Code lays down the matters to which the affidavit shall be confined. Mr. Ratta also admits that where a petition for winding up is not supported by an affidavit, the same is liable to be dismissed.

(3.) HE, however, submits that the verification of an affidavit is a matter of form and he should have been allowed to file a firesh affidavit and the petition should not have been dismissed for want of proper verification of the affidavit. He placed reliance on Manohar Narayan Joshi v. Ramu Mhatang Patel, AIR 1973 Bom 105.