(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. The present appeal is filed by the Plachem Industries being aggrieved by the Judgment and Order dated 20.04.2005 in Company Petition No.336 of 1997 whereby the learned Company Judge was pleased to dismiss the Company Petition for the reasons recorded in paragraph no.20 and the later part which reads as under, “The Court has gone through the entire record and also verified from the office and yet neither any affidavit in support of the publication of advertisement is on record nor the relevant newspaper cutting containing said advertisement are placed on record. Even after the said order passed on 03.05.2004, nothing is placed on the record so as to convince the Court that the advertisement has already been published. In absence of any documentary evidence placed on record the Court is not in a position to accept the oral submission that the advertisement has been duly published on 19.07.1999. The Court, therefore, without adjudicating the issue as to whether defence raised by the respondent – Company is a genuine and bona fide dispute, the Court dismisses this petition only on the ground of non observance of statutory requirements”.
2. The learned Advocate Mr. Navin K. Pahwa for the appellant herein submitted that, by the reasons mentioned in the paragraph no.21, the Court also refused to take any action for the perjury against the Directors of the respondent company.
3. The learned Advocate for the appellant invited attention of this Court to page no.26 – Annexure 'B' which is advertised public in Business Loksatta Jansatta, Ahmedabad Edition dated 19.07.1999 and the Indian Express, Vadodara Edition on 19th July, 1999.
4. The learned Advocate for the appellant submitted that, inadvertently, the learned Advocate appearing for the present appellant could not place the advertisement published in the newspapers on the record of the Company Petition. He submitted that, the factum of publication of advertisement is very much established and that too on the date, it was required to be published by the Order of winding-up passed by the learned Company Judge.
5. The learned Advocate for the appellant submitted that, the dismissal of winding-up petition has non suited the appellant – petitioner. The appeal has a cause, when it is being adjudicated for an inadvertent error on the part of the learned Advocate appearing for the appellant.
6. This Court finds that, the appeal is required to be allowed and the same is allowed. The Judgment and Order dated 20.04.2005 is quashed and set-aside.
7. The Company Petition No.336 of 1997 shall proceed from the stage, it was at the time of passing of the aforesaid Order.
8. The learned Advocate for the appellant shall comply with the required procedure of placing the advertisement on the record of the Company Petition.
9. At the request of the learned Advocate for the appellant, it is clarified that, it would be open for the appellant to pursue its prayer for action for perjury.
10. Again, at the request made by the learned Advocate Mr. N. K. Majmudar for the opponent, it is clarified that, it will be open for his clients to present his case in winding-up petition as well as in an action which may be instituted for perjury.
(Ravi R. Tripathi, J.) Sunil W. Wagh (N. V. Anjaria, J.)