TaxTMI 
TaxTMI 
TaxTMI 
2009 (7) TMI 762
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....inding up in one issue of Tamil daily Dinamani and another two issues in the English daily The New Indian Express and The Times of India (all India edition) and other peripheral directions. 2. The abovesaid 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 not only been 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 24 of the Com....
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....ng 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 :- "Admission of petition and directions as to 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 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." 7. Rule 24 which refers to advertisement of petition provides :- "Advertisement of petition.-Where any p....
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....nding up be not admitted, the company may show cause and contend that the filing of the petition amounts to an abuse of the process of the court. If the petition is admitted, it is still open to the company to move the court that in the interest of justice or to prevent abuse of the process of court, the petition be not advertised in National Conduits (P.) Ltd. v. S.S Arora [1967] 37 Comp. Cas. 786 (SC). 9. From the decision of the Apex Court, it is evident that the admission of the company petition and advertisement of the same as provided in the rules are must and in the absence of advertisement and its admission, the company petition was bound to be rejected. In Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd. [1984] 55 Comp. ....
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....son Associates Ltd. [1999] 95 Comp Cas. 532 (Mad.)]. 10. Admittedly, in this case, none of the above mandatory statutory provisions are followed. On pre-admission notice and upon hearing the appellant-company it was directed to be wound up. 11. Where a statute requires to do a certain thing in a certain way, the thing must be done in that way and all other methods of performance are necessarily forbidden [see A.R. Antulay v. Ramdas Sriniwas Nayak AIR 1984 SC 718]. 12. Any order passed against the principles of natural justice or in violation of a statutory provisions is regarded to be illegal. "Legality" and "regularity" are well understood terms and well recognised grounds for interference, on appeal or revision. An order is illegal, if....
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....did not grant decree for charge over the property for which the respondent filed the suit, but granted personal money decree. On appeal by the appellant against that money decree, the High Court granted a decree for charge over the property. When this was disputed, the Apex Court ruled as follows :- "6. In Giani Ram v. Ramji Lal [1969] 3 SCR 944; AIR 1969 SC 1144, the Court said that in Order 41, rule 33, the expression 'which ought to have been passed' means 'what ought in law to have been passed' and if an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require. 7. Ther....
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....Code, 1908 and hence it is no judgment in the eye of law and it may set aside the same and send the matter back for re-writing the judgment so as to protect the valuable right of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by rule 23 or rule 23A or rule 25 of the Civil Procedure Code. An unwarranted order of remand gives the litigation an undeserved lease of life and therefore must be avoided. 16. As already stated, the company law is a special law and it provides certain inbuilt mandatory safeguards to be followed by the company court while passing orders and winding up as envisaged in the Companies (Court) Rules, 1959. As already stated, the impugned order is an order aga....