Milap Chandra Jain, J. - (1.) A preliminary objection has been raised for and on behalf of the respondents that the company petition has been filed for and on behalf of three petitioners, namely, (1) Babu Ram Agrawal, (2) Rewa Goya] and (3) Nirmala Agrawal, but it bears the signature of petitioners No. 3 Nirmala Agrawal only; it is accompanied with an affidavit of Nirmala only; Nirmala has admittedly less than 10% shares; neither consent of the petitioners Nos. 1 and 2 nor their affidavits have been enclosed with the company petition and as such it is not maintainable. Reliance was placed on P.S. Nanawati v. Jaipur Metals and Electricals Ltd. (1990) 69 Comp Cas 769 (Raj) .
(2.) In reply, it has been contended by the learned counsel for the petitioners that the petition has been moved in the prescribed Form No. 43. This Form does not require that all the petitioners should sign the petition, rule 22 (21 ?)) Companies (Court) Rules, 1959 (hereinafter to be called 'the rules') simply requires that a petition shall be verified by an affidavit of the petitioners or one of the petitioners, where there are more than one petitioners. All the three petitioners have more than 10% shareholding. He relied upon Narinder Singh and others v. Randhawa Transport Company (P) Ltd. (1973) 43 Comp Cas 341 (P&H) .
(3.) It is the admitted case of the parties that all the three petitioners have more than 10% shareholding of the respondent company. The question is whether the consent of the petitioner Nos. 1 and 2 was required to be filed along with the company petition. Rule 88(1) of the rules runs as under : "88. Petition under section 397 or 398.-(1) Where a petition is presented under section 397 or 398 on behalf of any members of a company entitled to apply under section 399(1), by any one or more of them, the letter of consent signed by the rest of the members so entitled authorising the petitioner or petitioners to present the petition on their behalf, shall be annexed to the petition, and the names and addresses of all the members on whose behalf the petition is presented shall be set out in a schedule to the petition, and where the company has a share capital, the petition shall state whether the petitioners have paid all calls and other such due on their respective shares. Where the petition is presented by any member or members authorised by the Central Government under section 399(4), the order of the Central Government authorising a member or members to present the petition shall be similarly annexed to the petition. A petition under section 397 shall be in Form No. 43, and a petition under section 398 shall be in Form No. 44.";