SHANTILAL KHUSHALDAS PRIVATE LIMITED Vs. CHANDANBALA SUGHIR SHAH

JUDGEMENT

(1.) THIS application is made in Judges summons praying for the dismissal of the Company Petition No. 5/s/1991 instituted by the respondents for winding up the applicant-company under section 433 of the Companies Act, 1956.

(2.) THE petition for winding up of the applicant-company is on the grounds that the company is unable to pay its debts. It is averred on their behalf that by virtue of the agreement dated 10th February, 1987, the company had to repay amount deposited by the respondents; that despite statutory notice dated 23rd January, 1991, under section 434 of the Companies Act no steps towards the repayment were taken and therefore, the company be wound up under the directions of the Court. On notice being issued, applicant-company opposed the winding up petition by its affidavit. In the Judges summons a contention is taken that the petition for winding up is liable to be rejected in limine on the ground that petition has been signed and verified by a constituted Attorney which is not maintainable and incompetent under the law and secondly on the assumption that a petition can be instituted by a duly authorized agent, it is urged that Attorney who has instituted winding up petition has no authority under the Power of Attorney to do so.

(3.) TO complete the narration it may be mentioned that the respondents No. 1 and 2 claim that under the Agreement dated 10th February, 1987, the applicant-company has failed to return the amount deposited with the company. The petition has been sworn by Pravinkumar Gosalia claiming to be the constituted Attorney of the respondents. The affidavit in support has also been filed and sworn by the aforementioned Pravinkumar Gosalia, under Power of Attorney dated 29th October, 1990.