J. CHALAMESWAR, J. ( 1 ) THIS company petition is filed by the petitioner purporting to be under sections 433 (e) and (t) and 439 of the companies Act, 1956 praying that the respondent-Company be wound up on the ground that the respondent-Company is not able to pay its debts. ( 2 ) NOTICE before admission was ordered on 28-4-2000. Thereafter, the matter under went several adjournments and finally on 29-8-2000 proof of service is filed into the Court by the petitioners. Though notice was served on the respondent, nobody appeared on 29-8-2000 on behalf of the respondent. However, this Court felt it appropriate to adjourn the matter and directed that the matter be listed on 11-10-2000. Again the matter appeared on 11-10-2000. At that point of time Sri G. Narendar Raj, learned Counsel, appeared on behalf of the respondent and sought time to file counter and the matter was directed to be listed to today i. e. , on 30-11-2000. ( 3 ) A memo signed by the learned counsel for the respondent Sri G. Narendar raj dated 28-11-2000 was filed in the registry on the same date. The relevant portion of which reads as follows:"the respondent-Company informed its counsel, that it received only petition without any affidavit under Rule 21 of the petitioner and material papers. We have awaited up to 23-10-2000. It is to submit that upon failure of petitioner to supply authenticated petition and Documents, the Counsel for the respondent inspected the file on 23-10-2000, with the leave of the registrar (Judl. ). Further the Counsel applied for certified copies with bearing no. CA No. 343/2000, CA No. 374 of 2000 and CA No. 423 of 2000 still CD copies are not received, yet. It is to submit that under Rule 29 of the companies (Court) Rules the petitioner herein is responsible for service of petition on the respondent. He has to serve notice along with the petition, affidavit and material papers as (a) under Rule 26, the petition has to be served on the respondent-Company. (b) under Rule 27, the Notice shall be in the Form No. 6 - But, as per the record of the Company Court, it is not in the form prescribed, and with improper information. (c) under Rule 21, the petition must be accompained by an affidavit in Form no. (b) under Rule 27, the Notice shall be in the Form No. 6 - But, as per the record of the Company Court, it is not in the form prescribed, and with improper information. (c) under Rule 21, the petition must be accompained by an affidavit in Form no. 3 - affidavit is filed in the Court only, which is not according to Rules and form No. 3. (d) The Para No. 3 of the affidavit, filed by the petitioner is showing that, in support of petition some material papers are filed. But the petitioner failed to serve on respondent on or before 29-8-2000, even on 11-10-2000 or till date. (e) The Petitioner s Counsel filed affidavit of service on 29-8-2000. That should have been in the form of Form no. 7 along with a copy of the petition served. It is to submit that it is a mandatory duty on the petitioner to serve the petition along with the necessary papers and notice on the respondent. Further the respondent has got ,the right to be informed authentically. Hence it is therefore prayed that your Lordships may be pleased to dismiss this Company Petition No. 56 of 2000 under Rule 31 of Companies (Court) rules, 1959 in the the interest of justice, else the respondent-Company may be permitted to file application, under rule 31, of the Companies (Court) rules, 1959. " ( 4 ) ANOTHER memo bearing the same date was handed over directly to the Court officer when the matter is being taken up signed by the learned Counsel for the respondent praying for one month s time in the matter. The relevant portion, which reads as follows:"furthermore, the respondent company has not got complete petition papers. So it applied for certified copies with bearing CA No. 346 of 2000, CA No. 374 of 2000 and CA No. 423 of 2000. Also the Counsel for the respondent herein is pre-occupied in regarding to his son s marriage which is scheduled to be held in first or second week of december 2000. "apart from that, the respondent-Company addressed a letter to the Court directly along with a Xerox copy of the company petition said to have been received by the respondent-Company. Also the Counsel for the respondent herein is pre-occupied in regarding to his son s marriage which is scheduled to be held in first or second week of december 2000. "apart from that, the respondent-Company addressed a letter to the Court directly along with a Xerox copy of the company petition said to have been received by the respondent-Company. It is relevant to extract the contents of the letter, which reads as follows :"the applicant company i. e. , M/s. Yenkay drugs and Pharmaceuticals Limited submits this application before your lordships for your kind consideration. 1. That the applicant company received a copy of winding up petition has got CP no. 56 of 2000. 2. That the said company petition has not got any Court seals, hence we have been waiting for Court notice. We herewith enclosing a copy of the said received petition. 3. That the petition was received by our company, probably, two months back. The petition was with lack of information hence we did not give any importance, with a view that it was neither a Court notice nor an authentic notice. 4. That recently, the said petition came across me. Then I further verified the petition for notice, but I could not find any notice. Further the said petition does not contain any filing date, hearing date and docket, except cp number. 5. The applicant company respectfully submits before your Lordships that if the received company petition is an authentic one, then your Lordships may kindly order notice to us. Upon that we can act accordingly. Hence, the applicant company humbly prays and craves before your Lordships that your Lordships may be pleased to order notice to us and may be pleased to recall any adverse orders if passed already against us". ( 5 ) IT is also pertinent to note that the xerox copy of the petition said to have been served on the respondents contains endorsementby some officer of the company apparently the Finance Manager, which reads as follows:"i have gone through this petition. It seems that nothing but a preference petition. Because it does not contain any hearing date, filing date and docket. Hence, we need not worry at this juncture. Even this petition does not have any court seals". It seems that nothing but a preference petition. Because it does not contain any hearing date, filing date and docket. Hence, we need not worry at this juncture. Even this petition does not have any court seals". ( 6 ) THE learned Counsel for the respondent argued that the respondent- company only received a copy of the petition in the CP 56 of 2000 unaccompanied by any affidavit as required under Rule 21 of the Company Court Rules, 1959 though and the memo is not specific about this Rule. The learned Counsel submitted that in view of the fact that the papers served on the respondent company are incomplete, in the sense, the service is not in accordance with Rules 26, 27 and 29 and therefore, is liable to be dismissed without any further enquiry into the matter. ( 7 ) TO appreciate the submission of the learned Counsel, it is necessary to examine the scheme of the Rules of the company s (Court) Rules, 1959. ( 8 ) THE "companies (Court) rules, 1959" are framed by the Supreme court after consulting the High Courts. Rule 10 stipulates that all applications under the Act shall be made by a petition or by a Judge s summons as hereinafter provided . However, that stipulation is subject to further limitations i. e. , if there is anything provided elsewhere in the rules otherwise, or if the Judge - a defined expression under Rule 2 (8) - permits such a departure. Rule 11 (a) stipulates that certain categories of applications enumerated under sub-rules (1) to (23) be made by a petitioner. Sub-rule (b) of Rule 11 stipulates that all other applications, that is, applications other than the ones enumerated under sub-rule (a) be made by Judges summons. ( 9 ) AN application under Section 439 of the Companies Act for the winding up of a company is one of the applications enumerated under Rule 11 (a) (15), therefore, application is required to be made by a petition and not by the procedure of Judge s summons. ( 10 ) RULE 21 requires that every petition shall be verified by an affidavit in the matter prescribed therein and the rule further stipulates such an affidavit filed along with the petition shall be in Form no. 3. ( 10 ) RULE 21 requires that every petition shall be verified by an affidavit in the matter prescribed therein and the rule further stipulates such an affidavit filed along with the petition shall be in Form no. 3. Rule 22 reads as follows:"enclosures to petition: Unless dispensed with by the Judge or Registrar, every petition and application mentioned in appendix II hereof, shall be accompanied by the documents set opposite thereto in column (4) of the said Appendix". ( 11 ) THOUGH the Rule refers to appendix II, the Company Court Rules, 1959 do not contain anything entitled Appendix. However, at the end of Rules after the schedule, which contains various forms contemplated under the Rules an annexure is provided, which refers to the Rule 22. The annexure deals with the various applications that could be made under the rules and Rule 22 stipulates that such applications contained in Annexure 2 should be accompanied by such documents as are indicated against each of the items in the annexure and an application under section 439 by the creditors is not one of the items contained in Annexure 2. ( 12 ) PART III of the Rules deals with the winding up by the Court. Rule 95 stipulates that a petition for winding up of a company shall be in such a form as indicated in the Rule and is required to be presented in duplicate, in fact there are three forms contemplated under the rule they are 45, 46 and 47. Form no. 45 deals with general applications that could be filed for the winding up of the company under the Companies Act. Form no. 46 deals with the form of petition to be filed by a creditor of the Company and form No. 47 prescribes the format of the petition for winding up of the company when it is filed by the Company itself rule 96 deals with the next step after the presentation of the petition. Rule 96 reads as follows:"admission of petition and directions as to advertisement : Upon the filing of the petition, it shall be posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisements to be published and the persons, if any, upon whom copies ofthe petition are to be served. The judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition". ( 13 ) FROM the above, it can be seen that upon filing of a petition, the same is required to be posted to the Judge in chambers and the Judge thereupon is required to deal with four aspects of the matter. The Judge is required to decide whether the petition should be admitted or dismissed, 2) to fix a date for hearing 3) directions as to the advertisement to be published or to be deferred and lastly is required to decide upon whom copies of the petition are to be served. The Rule also vests the discretion in the Judge to direct notice to be given to the company before giving directions as to the advertisement of the petition. Rule 98 positively mandates that every contributory or creditor of the Company shall be entitled to be furnished by the petitioner or by his advocate with a copy of the petition within 24 hours from the time of the demand of such service, subject, of course the person demanding the service pays the prescribed charges. ( 14 ) AS already noticed Rule 96 only deals with the discretion of the Judge in the various matters. With reference to service on the persons contemplated under rule 96 as to how the service is affected is not dealt with under the said rule. Therefore, necessarily we have to look at the other Rules. ( 15 ) RULE 26 is the Rule, which deals with the service of the petition, which requires that every petition shall be served on the respondent if any, named in the petition. It further stipulates that the petition shall be served on such other persons as the Act or Rule may require depending upon the nature of the petition. The Rule further stipulates a copy of the petition shall be served along with the notice of the petition; such notice is required to be in Form No. 6 as stipulated under Rule 27. ( 16 ) AS can be seen from the above, a petition is distinct from an affidavit contemplated under Rules. The petitions are required to be in the prescribed format depending upon the nature of the petition and the various forms are prescribed in the rules. ( 16 ) AS can be seen from the above, a petition is distinct from an affidavit contemplated under Rules. The petitions are required to be in the prescribed format depending upon the nature of the petition and the various forms are prescribed in the rules. However, affidavits are treated differently, from the petitions. Under rule 18, it is stipulated as to how the affidavit is required to be drawn and how it is to be signed and sworn. Rule 21 mandates that every petition shall be verified by an affidavit and such an affidavit shall be filed along with the petition. Coming to the service under Rule 26, it is only the petition that is mandated to be served on the respondent. The makers of the Rule are conscious of the distinction between the petitions and the affidavit. The Rules do not stipulate that the affidavit also is required to be served on the respondent along with the petition. More particularly, in view of the stipulation in Rule 26 that a copy of the petition is required to be served along with notice of the petition, which is required to be in form No. 6, if the framers of the Rule intended that the affidavit also should necessarily accompany the petition, served on the respondent they would have expressly said so. ( 17 ) ASSUMING for the sake of argument that the expression petition also takes in its sway the verifying affidavit required to be filed along with the petition, and therefore required to be served on the respondent, it is nowhere stipulated in the rules unlike Section 87 (3) of the representation of the People Act, 1951 that such non-service would demand the dismissal of the company petition. At the worst it is a curable defect. Even in the presence of a positive prescription under the Representation of the People Act, 1951, the Supreme Court in A. Madan Mohan v. K. Chandrasekhara, AIR 1984 SC 871 , held at Para 10 as follows:"the learned Counsel for the petitioner vehemently contended that as the schedules and other documents formed an integral part of the petition, the same should have been served on the petitioner (respondent in the High Court) before it could be said that the provisions of Sections 81 and 82 of the Act had been complied with. It was further argued that in the absence of such compliance, the petition was liable to be rejected in limine under Section 86 of the Act. We are, however, unable to agree with this contention, which does not at all flow from the plain and simple requirements of Sections 81 and 82. As indicated above, all that was necessary was done in this case and there was no requirement that the documents or the schedules should also have been served on the petition because if they were filed in the Court it was always open to the petitioner to inspect them and find out the allegations made in the petition. We are unable to hold that the documents or the schedules formed an integral part of the petition". ( 18 ) THAT apart from the procedure of issuing notice before admission is a discretionary procedure evolved by the courts for the convenience of the parties and in the interest of institution as it might happen occasionally that some of the litigation might get resolved even without the litigation going through all the procedural formalities of the law. Therefore, normally in all these company petitions for winding up, this High Court as a practice has been following the procedure of issuing the notice before admission. Once such a notice is ordered, the Court is normally permitting the Counsel for the petitioner to take out notices to be served on the respondent without the aid of the Registry of the Court. Upon such notice if really the respondent is not served with all the papers filed into the court in connection with the petition he has two options either to obtain copies of the same from the Registry of the Court, or collect such a set of papers from the petitioner or his Counsel. As a matter of courtesy among the members in the legal profession whenever such a demand is made by any Counsel appearing for one of the parties to the Counsel appearing on the opposite side papers are normally supplied. The respondent in this case instead of resorting to either of the procedures though received notice, admittedly on 29-8-2000, comes forward with the present memos raising hypothetic objection, in my view, just to delay the adjudication of the company petition. The respondent in this case instead of resorting to either of the procedures though received notice, admittedly on 29-8-2000, comes forward with the present memos raising hypothetic objection, in my view, just to delay the adjudication of the company petition. ( 19 ) NO substantial defence is placed before this Court as to why the company petition should not be admitted, although the respondent is aware of the pendency of such petition for winding up. In fact the respondent engaged a Counsel who entered appearance as long back as on 11 -10-2000 and sought time to file a counter. If really the copy of the verifying affidavit was not served on the respondent, as contended by him, a simple request from the Counsel for the respondent, either to the Counsel on the other side or to the court would have solved the problem. In the circumstances, I am of the opinion that one who raises a procedural objection must punish by the same. I do not see any reason to give any further time to the respondent. ( 20 ) IN view of the averments made in the company petition that an amount of rs. 5,89,963/- is due to the petitioner as on 31-3-2000 which amount is said to have been advanced by the petitioner by way of an intercorporate deposit. Prima facie, the application is supported by a Xerox copy of the letter said to have been issued by the respondent to the petitioner requesting to grant an intercorporate deposit of Rs. 5 lakhs, a copy of the demand promissory note said to have been executed by the Chairman and managing Director of the respondent-Company, a Xerox Copy for the receipt acknowledging the receipt of an amount of rs. 5 lakhs by the respondent-Company purported to have been signed by the chairman and the Managing Director of the company. Therefore, the company petition is admitted and the publication as required under Rule 99 of the Company (Courts) rules shall be made in "eenadu" Telugu daily Newspaper and in "deccan Chronicle" english Daily Newspapers. ( 21 ) POST the matter on 23-1-2001 for proof of publication.