TaxTMI 
TaxTMI 
2017 (7) TMI 1229
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and (c) of the Company Secretaries Act, 1980. 6. I have heard learned counsel for the parties and perused the record. 7. This company petition has been filed by Devraj Gupta, company secretary in practice. 8. In paragraph 1 of the supporting affidavit Devraj Gupta has kept the space blank in respect of the person by whom the power of attorney was executed. 9. The power of attorney of S.C., Bansal, director of the petitioner-company has been filed as annexure P1. In terms of section 291 of the Companies Act, 1956, the board of directors of the company is empowered to act on behalf of the company. The memorandum of articles of association of the petitioner-company has been filed as annexure P3 and in terms of clause 55 thereof, the board of directors can entrust and confer any power exercisable by them to the managing director and in terms of clause 56(5) the managing director has power to institute such legal proceedings. Nothing has been pointed out by counsel for the petitioner to show that Shri S.C. Bansal is managing director, on the contrary the power of attorney reveals that he is only a director. So far as section 2(2)(b) and (c) of the Companies Secretaries Act,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atory requirements thereof. So far as the proviso is concerned, it will be necessary to note that the affidavit filed by Satyendra Veer as pairokar in support of the petition nowhere states that the said person was duly authorised by the petitioners to file the affidavit in support of the petition. All that it says is that, 'the deponent was the pairokar in the aforesaid case and well acquainted with the facts deposed to below'. It is only in the application dated September 24, 1998 that for the first time it was being stated that the petitioners had duly authorised Satyendra Veer to file the petition. This appears to be an afterthought and only with a view to get rid of the difficulty in complying with the provisions of rule 21 of the Rules. Besides, the court does not see any sufficient reason to grant leave to the pairokar to file this petition especially in view of the averments made in the counter affidavit and the contention of the respondent that the instant petition has been engineered by Satyendra Veer Singh who was the ex-director of the respondent-company and also had serious litigation with the present board of directors. Consequently, I see no reason to accept ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt had held that the defect in the verification clause could be cured by filing another affidavit in support of the petition and the defect was only of a technical nature or a mere irregularity which could be rectified. The facts, however, in the present case at hand are not the same. Here, the defect is not in the verification clause of the affidavit and the question is not of the non-compliance of Form No. 3. Here, the affidavit filed in support of the petition has been filed by a pairokar and the affidavit does not disclose that the said pairokar had been authorised by any of the petitioners to file the affidavit in support of the petition. The requirement of the rule, as already noticed above, is that the petition shall be verified by an affidavit of the petitioner. Even the proviso to rule 21 on which reliance has been placed states that leave can be granted by the court for sufficient reason to any other person duly authorised by the petitioner to file the affidavit. It is evident, therefore, that compliance of rule 21 has not been made in the present case. There can be no dispute that the Rules which have been framed under section 643 of the Act are statutory Rules which ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t to be filed will be by petitioner No. 2. This anomaly cannot be reconciled. The decision of the Calcutta High Court in the case of Gaya Textiles P. Ltd., In re, : AIR 1968 Cal 388, has been followed by a learned single judge of the Punjab and Haryana High Court in the case of Mool Chand Wahi v. National Paints P. Ltd.: [1986] 60 Comp Cas 198 (P & H), and the judgment of the learned single judge in the said case was confirmed by the Division Bench of the same High Court in the case reported in the same volume, namely, Mool Chand Wahi v. National Paints P. Ltd. : [1986] 60 Comp Cas 402 (P & H). The Punjab and Haryana High Court while agreeing with the view of the Calcutta High Court has held that an affidavit which supports the company petition is treated as substantive evidence and where there is no affidavit in accordance with law accompanying the petition it is no petition in the eye of law. The prayer to file a fresh affidavit properly sworn is to be rejected for the reason that if the amendment of the petition for winding up is allowed, it will relate back to the date of presentation and will lead to great confusion and complications. In fact, even the Bombay High Court in the....