Mandatory affidavit for substituted petitioners in winding up petitions determines maintainability under Rule 102

Rule 102 of the Companies (Court) Rules, 1959 requires a substituted creditor or contributory filing an amended winding up petition to file an accompanying affidavit in duplicate setting out the grounds in support. The amended petition is treated as the winding up petition and as presented on the original date, but that deeming fiction does not dispense with the affidavit requirement. On the stated facts, omission of the affidavit meant the amended petition was not maintainable.

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Issues: Whether an amended winding up petition filed by substituted petitioners was maintainable without the affidavit required by Rule 102 of the Companies (Court) Rules, 1959.

Analysis: Rule 102 provides that when a creditor or contributory is substituted as petitioner, the amended petition must be filed within the stipulated time together with an affidavit in duplicate setting out the grounds on which the petition is supported. The rule further deems the amended petition to be the petition for winding up and treats it as presented on the date of the original petition. Since the amended petition filed by the substituted petitioners was not accompanied by the required affidavit, the procedural requirement was not satisfied.

Conclusion: The amended petition was not maintainable without compliance with Rule 102, and the appeal was dismissed.

Ratio Decidendi: Where substitution of a petitioner in a winding up petition leads to an amended petition, compliance with the prescribed affidavit requirement is mandatory for maintainability.

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