Petition has been filed under Section 434 (i)(a) of the Companies Act, on the ground that the respondent has become commercially insolvent and consequently, liable to be wound up in terms of Section 433(e) of that.
2. The specific allegation is that as on the date of filing of the petition, respondent Company was liable to pay a sum of Rs.2,58,016/- to the second petitioner, who supplied dyes and chemicals to the respondent.
3. Learned counsel for the petitioner has made the following endorsement dated 08.03.2017:
“It is submitted that this Hon'ble Court may allow us to withdraw the above C.P.No.201 of 2013 and C.A.No.738 of 2013 and thus render justice.”
3.1. This endorsement is treated as petition seeking leave of this Court to withdraw the Company Petition.
4. The petition did not provide details of any other secured/unsecured creditors. Moreover, from the nature of allegations made, the likelihood of any contributory or persons interested, who are likely to be affected, appears to be remote.
5. The statutory requirement providing for leave to withdraw by the Court has to be considered.
5.1. As per Rule 100(2), an application for leave to withdraw a petition for winding-up which has been advertised in accordance with the provisions of rule 99 shall not be heard at any time before the date fixed in the advertisement for the hearing of the petition.
5.2. Rule 99 provides that the petition (for winding up) shall be advertised within the time and in the manner provided by rule 24 of these rules and the advertisement shall be in Form No. 48.
5.3. Rule 24 of the Companies (Court) Rules, 1959 reads as under:
“24. Advertisement of petition
(1) Where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State or the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper in the regional language circulating in the State or the Union Territory concerned, as may be fixed by the Judge.
(2) Except in the case of a petition to wind-up a company, the Judge may if he thinks fit, dispense with any advertisement required by these Rules.
5.4. Form No.48 is in the following form:
FORM NO. 48 [See rule 99] [HEADING AS IN FORM NO.1] Company Petition No of 19 .
. .. -Petitioner Advertisement of petition Notice is hereby given that a petition for the winding-up of the above-named company by the High Court at.. . (or the District Court of ) was on the day of... 19 presented to the said Court by the said company [or. where the petition was not presented by the company. state the name and address of the petitioner and the capacity in which he presents the petition e.g., creditor. contributory etc.] and that the said petition is directed to be heard before the Court on the day of ..... 19. Any creditor, contributory or other person desirous of supporting or opposing the making of an order on the said petition should send to the petitioner or his advocate notice of his intention signed by him or his advocate with his name and address. so as to reach the petitioner or his advocate not later than 5 days before the date fixed for the hearing of the petition. and appear at the hearing for the purpose in person or by his advocate. A copy of the petition will be furnished by the undersigned to any creditor or contributory on payment of the prescribed charges for the same. Any affidavit intended to be used in opposition to the petition should be filed in Court. and a copy served on the petitioner or his advocate. not less than 5 days before the date fixed for the hearing.
Advocate for Petitioner
5.5. A perusal of Form No.48 and the relevant rules would go to show that the impediment to grant leave for withdrawl of the petition is in the interregnum period of 14 days between the date of advertisement in Form No.48 and the date of hearing. No such impediment has been pointed out.
5.6. Hence, Leave is granted to withdraw the petition and the petition stands dismissed as withdrawn.
08.03.2017 vrc/ogy
Dr.S.VIMALA, J.
vrc/ogy C.P.No.201 of 2013 and C.A.No.738 of 2013 08.03.2017