NAOLEKAR, J. - (1.) THE petitioner M/s I. T. C. Bhadrachalam Finance & Investments Ltd. , is a company incorporated under the provisions of the Companies Act 1956 (for short hereinafter to be referred to as `the Act') as a public limited company. THE petitioner is, inter alia, engaged with the business of financing ventures, hire purchase leasing, investment consultancy and providing other simi- lar financial services. THE respondent, M/s Sand Plast (India) Ltd. is a company incorporated under the Act and carries on business of manufacturing building material including calcium silicate bricks, fly ash bricks and tiles etc.
(2.) THIS petition is filed on the allegation that vide letter dated 21. 4. 1995 the respondent requested to finance and provide bill discounting facility. The petitioner agreed to extend the facility. It is alleged that for refund of the amount, respondent tendered cheques to the petitioner but the same were not honoured by the respective banks. Thereafter, correspondence took place between the petitioner and respondent. By several letters the respondent acknowledged its liability to repay the amount due and kept on assuring early settlement of the same. However, it failed to meet current business liabilities without any reasonable cause and neglected to repay the dues of Rs. 1,00,51,237/- as on 31. 12. 1996. The petitioner ser- ved statutory notice under Section 433 and 434 of the Act calling upon the respondent as no amount was refunded, this petition has been filed praying that the respondent company be wound up by and under the order and directions of this court in accordance with the provisions of the Act, and for appointment of official Liquidator for all the assets, properties, funds and affairs of the company with all powers under Sections 450 and 457 of the Act. This court, vide order dated 6. 2. 1997 directed issuance of show cause notice of the petition for admission of the petition. Respondent company entered appearance and raised several preliminary objections for admission of the petition. It is submitted by the counsel for respondent that the affidavit filed in sup- port of the petition by Mr. Vivek Mazumdar, Assistant Manager and Constituted Attorney of petitioner company, is not in consonance with Rules 18 and 21 of the Companies (Court) Rules, 1959 (for short, hereinafter to be referred to as `the Rules'), inasmuch as the affidavit is not sworn nor is by a person who is the director, secretary or other principal officer of the company. The affidavit is not in the speci- fied form No. 3 of the Rules, the affidavit does not disclose source of information on the basis of which contents of the petition are verified, there is no resolution by the Board of Directors for filing a winding up petition in absence of which the Assistant Manager of petitioner company has no authority to file this petition, and urged that on account of aforesaid lacunae which goes to the root of matter, peti- tion may be directed to be dismissed in limini. On the other hand, the counsel for petitioner has emphatically stated that the affidavit is in conformity with all legal requirements and the petition cannot be dismissed on that count. Further it has been submitted that power of attorney filed along with the petition authorising Mr. Vivek Mazumdar to file the petition indicates the intent of the Board of Directors for filing a company petition against the respondent company. The arguments of learned counsel for the respondent Mr. Paras Kuhad, is proceeded on the basis of Rules 18 and 21 which reads:- ``18. Affidavits.- (a) Every affidavit shall be drawn up in the first person and shall state the full name, age, occupation and the place of abode of the deponent. It shall be signed by the deponent and sworn to in the manner prescribed by the Code or by the Rules and practice of the Court. (b) Every exhibit annexed to an affidavit shall be marked with the number of the proceedings to which it relates, and shall be initialled and dated by the authority before whom it is sworn. (c) Except with the leave of the Judge, no affidavit having interlineation, alteration or erasure, shall be filed in Court unless such interlineation or alteration is initialled by the authority before whom it is sworn, or in the case of an erasure the words and figures written on the erasure are rewritten in the margin and initialled by such authority. 21. Affidavit verifying petition.- Every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where there are more than one, and in the case the petition is presented by a body corporate, by a director, secretary or other principal officer thereof; such affidavit shall be filed along with the petition and shall be in Form No. 3: Provided that the Judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit. ''
(3.) RULE 18 says that every affidavit shall be drawn up in the first person and shall state the full name, age, occupation and the place of abode of the deponent. It shall be signed by the deponent and sworn to in the manner prescribed by the Code or by the RULEs and practice of the court. RULE 21 is in regard to affidavit verifying petition and requires that every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where there are more than one, and in case the petition is presented by a body corporate, by a director, secretary or other principal officer thereof. Such affidavit shall be filed along with the petition and shall be in Form No. 3. The present petition is filed by a body corporate and, therefore, is required to be verified accordingly. According to the counsel for respo- ndent, RULE 18 is in regard to how an affidavit in company petition shall be executed and RULE 21 prescribes the person who can file an affidavit and the Form in which it is to be filed. By reading these two RULEs together, affidavit accompanying the petition is required to be sworn and not affirmed, and swearing of the affidavit should be in the manner prescribed by the Code or by the RULEs and practice of the court. There is difference between swearing and affirmation of an affidavit and that difference can be demonstrated by the definition of ``swear'' in Section 3 (62) of General Clauses Act, 1897 which reads as under:- ``swear'' with its grammatical variations and cognate expressions, shall include affirming and declaring in the case of persons by law allowed to affirm or declare instead of swearing. '' Thus, it is apparent that normally swearing does not include affirmation or declaration and further under RULE 49 of RULEs of the High Court of Judicature for Rajasthan, 1952, it is provided that the person administering an oath or affirmation to the person making an affidavit shall follow the provisions of the Oaths Act, 1969. The form of Oath/affirmation given in the name of God'' in case of swearing, and ``i do solemnly affirm'' in case of affirmation, which clearly indicates that swearing and affirmation of an affidavit are distinct acts and to be performed under the rules and practice of the court. According to the learned counsel since the affidavit is not sworn, it is no affidavit in the eye of law and the petition is required to be rejected. He relied upon the decision in Mool Chand Wahi vs. National Paints P. Ltd. & another (1), wherein it has been held by the learned Single Judge of Punjab & Haryana High Court that it is evident from rules 11 (a), 18 and 21 of the Rules that the petition for winding-up is required to be accompanied by an affidavit in due form in conformity with these rules and if the affidavit is not in due form, no value can be attached to it. In the appeal preferred, Division Bench of the same High Court affirmed the decision of Single Bench and held that under rules 11 (a), 18 and 21 of the Rules a petition for winding-up is required to be accompanied by an affidavit in proper form, and an affidavit which is not in due form is not valid. The learned counsel for respondent then relied upon the decision in Malhotra Steel Syndicate vs. Punjab Chem-Plants Ltd. , (2), the learned Single Judge of Punjab & Haryana High Court has doubted the principles laid down in the aforementioned decisions. According to him, imperfect verification of the affidavit is only an irregularity and not an illegality of a type which will entail dismissal of the company petition. With great respect to the learned Judges of Punjab & Haryana High Court, I do not agree with the proposition of law that the affidavit accompanying the petition should be in conformity with Rules 18 and 21 of the Rules. Affidavit accompanying petition would not require compliance of Rule 18 of the Rule. Rule 21 lays down how every petition shall be verified by an affidavit and it lays down that such affidavit shall be filed along with the petition and shall be in Form No. 3. Thus, the affidavit required to be accompanied with the petition should be in Form No. 3 and no more. If the affidavit filed is in consonance with Form No. 3, then it is valid. So far Rule 18 is concerned, it speaks of every affidavit which is to be filed in a company proceeding before the court, by necessary implication it shall not include the affidavit which is required to be filed along with the petition. That is to say, when the affidavits are required to be filed in a pending company petition, they shall be in conformity with Rule 18 of the Rules whereas the affidavit accompanying petition shall be under Rule 21 in Form No. 3. Affidavit under Rule 18 will be sworn in the manner prescribed by the Code or by the rules and practice of the court, whereas affidavit under Rule 21 is an affirmation under Form No. 3. ;