ORDER : This in an application under S. 216, Indian Companies Act, by S. P. Bhargava and S. R. Sen Gupta, who claim to have been appointed as liquidators in voluntary liquidation proceedings of a Company known as the Elite Medical Stores, Ltd., praying that the orders of attachment and sale of certain goods of the Company passed in two pending Civil Suits instituted against the Company by the non-applicants, be set aside and the liquidators be given possession of the property. The non-applicants oppose the petition on the grounds that the petitioners are not entitled to make the application as the voluntary winding up being not in conformity with the provisions of Ss. 206, 207, 209, 209A and 214, Companies Act, was irregular and void and that as the orders of attachment were put into force before the commencement of the alleged winding up, they cannot be set aside under S. 216(2). 2. Learned Counsel for the petitioners argues that an extraordinary general meeting of the Company held on 17th March 1950, a special resolution that the company be voluntarily wound up and the petitioners be appointed as liquidators, was passed; and that the liquidation was a member's liquidation because the special resolution itself stated that the Company was solvent and able to meet all its liabilities. It is conceded on behalf of the petitioners that a notice of the resolution was not published in the Official Gazette as required by S. 206 and that the provisions of S. 207, Companies Act were not complied with and no declaration of solvency was filed. But it is argued that these omissions are not fatal; they are mere irregularities and not illegalities which vitiate the resolution winding up the Company or the appointment of the peti tioners as liquidators. It is further contended that the opponent-creditors have no locus standi to question the legality of the voluntary liquidation by the members and this Court cannot in these proceedings adjudge whether the voluntary winding up is valid. It is further contended that the opponent-creditors have no locus standi to question the legality of the voluntary liquidation by the members and this Court cannot in these proceedings adjudge whether the voluntary winding up is valid. As to the objection of the opponents that the orders of attachment were made before the commencement of the alleged winding up, it is said on behalf of the petitioners that S. 216 (2), Companies Act does not prohibit the Court from setting aside such orders and that the words "after the commencement of the winding up" in S. 216(2) refer to the time of applying and not to the time when the order of attachment is made or put into force. 3. Having heard the learned Counsel for the parties, I have come to the conclusion that this application must be refused. Under S. 216, Companies Act, the Court is empowered to exercise the powers mentioned in sub-sections (1) and (2) only if there is a petition before it by a person named in sub-section (1) namely by the liquidator or a contributory or a creditor. Before exercising the powers the Court must be satisfied that the application for the exercise of any of the powers under S. 216 is by a person entitled to make the application. There is nothing in S. 216, Companies Act to suggest that the Court must accept the statement of the person applying under that section that he is the liquidator or a contributory or a creditor and that the Court is precluded from entering into an inquiry suo motu or at the instance of the persons opposing the application to determine whether the applicant has locus standi to make the application. In my opinion, the non-applicants are entitled to ask this Court not to exercise the powers under S. 216 as the present petitioners are not the liquidators in law inasmuch as the voluntary liquidation proceedings in which they were appointed were illegal and void. I think a distinction ought to be drawn between a case where the persons applying under Section 216 himself attacks the validity of liquidation proceedings and a case where the objection as to the validity of the proceedings is raised by the persons resisting the application. I think a distinction ought to be drawn between a case where the persons applying under Section 216 himself attacks the validity of liquidation proceedings and a case where the objection as to the validity of the proceedings is raised by the persons resisting the application. A petitioner under S. 216 praying that the Court should exercise the powers under that section for the assistance of the voluntary winding up, as also one under S. 221, Companies Act asking the Court to make an order for the continuance of the voluntary winding up subject to the supervision of the Court, must accept the fact that the voluntary winding up is valid. He cannot apply for orders under S. 216 to assist the winding up or for a supervision order under S. 221, and at the same time challenge the voluntary winding up proceedings as being void The position of an opponent to such a petition is, however, different. His object is to secure the rejection of the petition and for that end, he is entitled to urge that the winding up proceedings in relation to which the Court has been moved to exercise the powers are void or for that reason, thepetitioner is not entitled to apply. In such cases the opponents' attack on the winding up is in the main with the object of showing that the conditions requisite for the exercise of the powers under S. 216 or 221, Companies Act, do not exist. 4. It is on this ground that the decision reported in 'Kameshwar Singh v. Ambher State and Stone Co., Ltd.', AIR (23) 1936 Pat 468 is distinguishable. In that case two creditors of a Company in voluntary liquidation applied to the Court for the appointment of "an official liquidator with the voluntary liquidator and for restraining the voluntary liquidator from parting with the property of the company." An additional petition was also filed by them asking for a declaration that the voluntary liquidation was illegal and void. It was contended on behalf of the Company in that case that the petitioning creditors had no locus standi. The learned Judge first stated that he had some difficulty in understanding the exact nature of the petitioners' application. He held that the application could not be entertained under S. 215 (now Section 216) Companies Act, or treated one for a supervision order. The learned Judge first stated that he had some difficulty in understanding the exact nature of the petitioners' application. He held that the application could not be entertained under S. 215 (now Section 216) Companies Act, or treated one for a supervision order. The learned Judge observed that the powers of the Court under S. 215 were strictly limited to assistance to the winding up and there was no power under the Companies Act for the creditors to come and say that the winding up resolution was bad and further that a creditor who challenges the voluntary winding up proceeding as void, cannot apply for a supervision order, which can be made only where there is a valid winding up. It will be observed that in the Patna case the powers under Ss. 216 and 221 could not have been exercised in favour of the petitioning creditors as they challenged the very fact, the existence of which was necessary for the exercise of the powers. The observations of the learned Judge that a creditor cannot come and say that the winding up proceedings are bad must be read with reference to the facts of that case and when so read the decision can be treated as holding only that a petitioner under S. 216, Companies Act has no locus standi to attack the validity of the voluntary liquidation. If the learned Judge intended to lay down as a general proposition that in proceedings initiated on an application under S. 216 of the Companies Act, the opponents to the applications have no locus standi to question the validity of the voluntary liquidation and the Court must also assume without any enquiry that the liquidation is valid, then I most respectfully disagree with the view. The question whether a creditor can attack voluntary liquidation proceedings also arose in a case before the East Punjab High Court 'John Vasica v. Janda Rubber Works Ltd.', AIR (37) 1950 EP 188. In that case the petitioner who was a creditor of the Company sought an order for a declaration that an order passed by the High Court under S. 221 directing the continuance of the voluntary liquidation subject to the supervision of the Court was without jurisdiction as the liquidation itself was illegal in so far as the provision of S. 207 were not complied with. On behalf of the Company, in that case, it was said relying on AIR (23) 1936 Pat 468 that it was not open to a creditor to question the legality of the voluntary liquidation of the members. The contention of the Company was not accepted. The learned Judge of the Punjab High Court observed that the Patna case did not help the Company and held that "if a voluntary winding up is bad in so far as it does not conform to the provisions of S. 207 then the appointment of a liquidator is bad and a fortiori the continuance of the voluntary liquidation". The Punjab case lends support to the view I have taken about the competency of a creditor to challenge in certain circumstances the voluntary liquidation proceedings as being void. I, therefore hold that the non-applicants in the present case are entitled to say that the petitioners are not competent to make the application because the voluntary liquidation in which they were appointed as liquidators, is void. 5. Coming now to the question whether the petitioner's appointment as liquidators is regular and valid so as to entitle them to apply under S. 216; Companies Act, it is first necessary to examine certain sections of the Companies Act. Section 203 states that a Company may be wound up voluntarily in one of three ways. Of these, the second and third are as follows : "(2) if the Company resolves by special resolution that the company be wound up voluntarily." "(3) if the Company resolves by extraordinary resolution to the effect that it cannot by reason of its liabilities continue its business, and that it is advisable to wind up." Then follow Sections 204 to 207, of which Sections 206 and 207 are important for our purposes. Section 206 says that the Company must advertise notices of the winding up resolution in the Gazette and in some newspaper circulating in the District where the registered office of the Company is situate, within ten days of the passing of the resolution. A default in advertising the resolution is punishable with fine. Section 207 divides voluntary winding up into two classes (1) a member's voluntary winding up and (2) the Creditor's voluntary winding up. A default in advertising the resolution is punishable with fine. Section 207 divides voluntary winding up into two classes (1) a member's voluntary winding up and (2) the Creditor's voluntary winding up. To constitute a member's winding up the directors or a majority of them must before sending out notices of the meeting, make and deliver to the Registrar a statutory declaration that in their opinion the Company will be able to pay its debts in full within three years from the commencement of the winding up. If the declaration of solvency as required by sub-sections (1) and (2) of S. 207 is not made, then the winding up is "a creditor's voluntary winding up." S. 208 and Ss. 208 A to E make provision for the procedure to be followed in a "member's voluntary winding up." The procedure applicable in the case of a "Creditor's voluntary winding up" is given in S. 209 and Ss. 209 A to H. 6. In the present case the Company by passing a special resolution stating that it was solvent and able to pay its debts in full, resolved to go into voluntary liquidation. The petitioners admit that the provisions of Ss. 206 and 207 (1) and (2) were not complied with, the resolution was not advertised in the Gazette and a declaration of solvency as required under S. 207 was not made. It is, however, contended that the omission to comply with these provisions is not fatal and further that as the company never intended to have a creditor's voluntary winding up and did not pass an extraordinary resolution to that effect that it could not by reason of its liabilities continue its business, it was not necessary to follow the provisions of Ss. 209 A to H. Applying the general rule that a Company cannot do that which is prohibited by the Act, but in cases where it is empowered to do a thing and it does it irregularly, then the irregularity can be cured., it is no doubt possible to take the view that the failure to conform to the provisions of S. 206, which only directs the advertisement of the resolution of winding up after its passing and which prescribes a penalty in the event of a default in complying with the provisions of the section, is only an irregularity and not an illegality which vitiates the resolution winding up the Company. But I do not think that it could be argued with any degree of force that even when the provisions of S. 207 (1) and (2) are not complied with, there is a valid "members' voluntary winding up". Under Section 207 (1) and (2), a member's winding up can be constituted only when there is a declaration of solvency as laid down in the section. As no such declaration of solvency was made, the winding up in which the applicants are said to have been appointed as liquidators cannot be regarded as a valid member's voluntary winding up. It follows that if the voluntary winding up is invalid as it does not conform to the provisions of S. 207, then the appointment of the petitioners as liquidators themselves is invalid, and they cannot be regarded as persons entitled to apply under S. 216, Companies Act. It is unnecessary for me to consider the question whether the winding up as a creditor's voluntary winding up is valid. For, firstly, the Company did not resolve to wind up by passing an extraordinary resolution to the effect that it could not by reason of its liabilities continue its business and secondly, it is not the case of the petitioners that there is a valid Creditors' voluntary winding up. In fact, during the course of his arguments, the learned Counsel for the petitioners maintained the position that the Company is solvent and it has no creditors and did not accept the position that there was a creditors' voluntary winding up. In these circumstances, it must be held that there was no valid members' voluntary liquidation and the appointment of the petitioners as liquidators in those proceedings is also not valid. 7. In these circumstances, it must be held that there was no valid members' voluntary liquidation and the appointment of the petitioners as liquidators in those proceedings is also not valid. 7. Quite apart from the objection that the petitioners are not entitled to make the application under S. 216, Companies Act, it is impossible for me to set aside the orders of attachment in the present case for the simple reason that the orders of attachment were made and put into force against the property of the Company before the passing of the special resolution for "voluntary winding up". I am unable to accede to the submission of the learned Counsel for the applicant that the words "after the commencement of the winding up" in S. 216 (2) refer to the time of making an application under S. 216, and do not qualify the orders of attachment, distress or execution. In my judgment, S. 216 itself presupposes that an application under that section would be made after the commencement of the winding up and the words "after the commencement of the winding up" obviously refer to the time when any attachment, a distress or execution is put into force against, the estate or effects of the company. Again, the power under S. 216, Companies Act can be exercised only if the Court is satisfied that the exercise of the powers would be just and beneficial not only to the petitioners but to all the parties. It would clearly be not a just exercise of powers when there are obvious irregularties in the procedure as regards the winding up. 8. For the above reasons, I reject the petition. In view of the difficult question involved in the petition which both sides were entitled to litigate, I direct that the parties shall bear their own costs of this petition.