SHINGHAL, J. - (1.) TWO procedural objections have been raised in regard to the present petition for the winding up of the Company known as the Kota Straw Board (Private) Ltd. , which shall hereinafter be referred to as the Company.
(2.) IN order to appreciate the objections, it may shortly be stated that the petition has been filed by three partnership firms of M/s B. Gopaldas, Acme Trading Co. and Paras Trading Co. The petition has however been signed by one Champalal, and nothing has been stated in the petition about his authority to make and sign it. But the petition has been verified by an affidavit of the said Champa Lal in which he has stated that he has been appointed special attorney by the petitioners, that he is fully conversant with the facts of the case and that he has been authorised to file an affidavit in support of the petition. The first objection is that the winding up petition has not been signed by any petitioners although this is the requirement of rule 26 of the Company (Court) Rules, 1959, hereinafter referred to as the Rules. It has been urged that by virtue of the provisions of order 6 rule 14 C. P. C. the petitioners could authorise another person to sign the petition, if by reason of absence or other good cause they were unable to sign it themselves, but no such reason has been stated, so that there is nothing on the record to show that there is proper compliance with the provisions of the law. Further, it has been argued that there is nothing on the record to show that Champalal has been authorised by the petitioners to sign it on their behalf. The other objection is that the petition has not been verified by an affidavit in accordance with rule 21 of the Rules inasmuch as the affidavit accompanying the petition has not been made by any one of the petitioners and it has not been contended that leave of the Judge or the Registrar has been obtained, on showing sufficient reason, for the filing of the affidavit by a person duly authorised by the petitioners to make and file it. The learned counsel has placed reliance on Star Textile Engineering Works Ltd. , vs. Gaya Textiles (Private) Ltd (1) to support this objection. It is true that the winding up petition should have been signed by the petitioners, for that is the clear requirement of sec. 433 of the Indian Companies Act, 1956 and rule 95 read with form No. 46 of the Rules. It is also true that there is nothing on the record to show that there was any reason or good cause for the inability of the petitioners to sign the petition themselves or that Champalal was duly authorised by them to sign the petition. The petition therefore undoubtedly suffers from the defect that it has not been signed by the petitioner, and to that extent it is defective. The defect, however, relates to a technical and minor matter of procedure and appears to be due to inadvertence. I am therefore of the opinion that it is in the nature of an irregularity which should be allowed to be cured. In fact it has not been disputed that Champalal had the authority to sign the petition on behalf of all the three petitioners, and the mere fact that care was not taken to make a statement to that effect in the petition should not result in the dismissal of the petition. I am fortified in this view by the observations in All India Rep. Ltd. Bombay vs. Hemchandra Dhomde Ratar (8), Radhakishan vs. Wali Mohammad (3) and Kaluram Pannalal vs. Jagannath Kalua (4 ). Reference may also be made to the view taken in Eastern India Theatres Ltd. vs. Ishwarbhai Somabhai Patel (5 ). As was held in that case, it appears to me that the irregularity in the signing of the petition may be allowed to be cured by allowing the petitioners to sign the petition for it has been stated by the learned counsel that they are prepared to do so on a direction by the court. The other defect pointed out by Mr. Garg is that the petition has not been verified by an affidavit in accordance with rule 31 of the Rules. According to that rule, every petition should be verified by an affidavit made by the petitioner or by one of the petitioners in Form No. 3. It is admitted that an affidavit has not been made by any one of the petitioners. The affidavit is of Champalal and the question is whether it is in order. The proviso to rule 21 of the Rules lays down 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 " It has been argued by Mr. Garg that no such prayer was made for the grant of leave to Champalal to make and file the affidavit, and that there was no sufficient reason why such leave should have been granted. A perusal of Champalal's affidavit shows that he has stated in paragraph 2 thereof that he had been authorised to file an affidavit in support of the petition. This averment in the affidavit has not been countermanded by any affidavit on the part of the other party. The fact therefore remains that there is nothing to disbelieve the statement in the affidavit that Champalal has been authorised to file an affidavit in support of the petition. In fact Mr. Lodha has stated at the Bar that Champalal holds the special power of attorney on behalf of the three petitioners, not only for the purpose of making the petition but also for the filing of an affidavit in support of it, and he has offered to show it for inspection. It therefore appears that the affidavit covering the petition cannot be said to have been made by a person who had not been duly authorised by the petitioners to make and file it, so that this basic requirement of the proviso to rule 21 has undoubtedly been fulfilled. It is true that leave of the Registrar or of the Judge was not taken, on showing sufficient reason, for the filing of such an affidavit by Champalal, but I do not think that the affidavit should be rejected for that reason alone. As has been stated, it is not in controversy that Champalal holds the necessary authority to file the affidavit and, as the petitioners are three partnership firms, it will not be unreasonable to allow them the facility of filing the affidavit by a duly authorised person. Moreover, it has to be remembered that no such defect in regard to the failure to obtain the prior leave of the court was noticed by the office, and the case has been admitted and processed to an appreciable extent. In these circumstances, it will not be proper to the filing of the affidavit and it may well be presumed in this particular case. Star Textile Engineer Works Ltd. vs. Gaya Textiles (Private) (1) cited by Mr. Garg was a case in which there was no affidavit according to law, for all that had been filed was a declaration before a Notary at Bombay. It was for that reason that leave was refused to re-verify the petition by an affidavit, and I do not quite see how that decision can really help the Company. In the view I have taken, the petitioners are allowed three week's time to sign the petition after which it may be listed for further consideration on. February 6, 1969. .;