Mool Chand Wahi vs National Paints (Private) Ltd. and Another

D.V. Sehgal, J.—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 & H)) on the ground that it was not accompanied by the proper affidavit. The appellant has filed the present company appeal u/s 483 of the Act against this judgment.

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 u/s 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 CPC (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.

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 Vs. Ramu Mhatang Patel and Others, .

We do not find any force in this contention. Going through the judgment of the learned single judge, we find that the law on the point has been elaborately discussed and as a result an imperative conclusion has been reached that the petition has had to be dismissed as it was not accompanied by a proper affidavit. An affidavit which is not in due form is of no value. An affidavit which supports a 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 learned single judge rightly rejected the appellant''s prayer to file a fresh affidavit properly sworn in for the reason that if the amendment of a petition for winding up is allowed, it relates back to the date of its presentation. It would lead to a great deal of confusion if the appellant is allowed to swear in and supply a fresh affidavit at a late stage because rights of third parties would crop up.

Manohar Narayan Joshi Vs. Ramu Mhatang Patel and Others, , was rightly distinguished by the learned single judge as it adjudicated on the question whether or not a petitioner in an election petition under the Representation of the People Act should be allowed to amend the affidavit accompanying it. An affidavit in support of an election petition is not intended to be treated as evidence of the facts stated therein because it is ultimately to be decided on the evidence recorded by the High Court.

No other valid argument could be advanced before us. We, therefore, find no force in this appeal which is dismissed leaving the parties to bear their own costs.

D. S. Tewatia, J.

I agree.