JUDGMENT Amitava Roy, J. 1. The applicant M/s Sheba Wheels Private Limited (Respondent in the aforementioned Company Petition) hereby seeks a recall of the order dated 4.1.2007 allowing the application of the present opposite party (Petitioner in the Company Petition) under Section 439 of the Companies Act, 1956 (hereafter referred to as the 'Act') read with Section 433(e) thereof. By the order sought to be set aside, the applicant company was directed to be wound up under the above provisions of the Act. 2. I have heard Mr. N. Dutta, Senior Advocate assisted by Ms. B. Goyal, Advocate for the applicant and Mr. O.P. Bhati, Advocate for the Opposite party. 3. The company proceeding was registered on an application filed by the present Opposite party under the above referred provisions of the Act for winding up the applicant Company for being unable to pay its debts, the pleaded case being that the applicant company having availed financial accommodation of Rs. 15,00,000/- from it to over come the prevailing financial constrains, failed to repay the same inspite of the demand made as required under the Act. It was alleged that the cheque bearing No. 130166 dated 24.3.2003 issued by it for purportedly repaying the amount of loan with interest was dishonoured by its bank with the remark "exceeds arrangement". The demand for payment of the amount due as made by the opposite party company's notice through its advocate having failed to evoke any response, a complaint was also filed against the applicant company and its Directors under Sections 138/141 and 142 of the Negotiable Instruments Act, 1988 as well as Section 420/ 406 of the Indian penal Code in the Court of the learned Chief Judicial Magistrate, New Delhi. 4. The company petition was filed on 25.8.2005 whereupon this Court order dated 31.8.2005 directed notice to be issued to the applicant company by registered post with A/d. The registered office of the applicant company was furnished to be at Ziakur Villa, Bishanpur, Shillong in the State of Meghalaya. Steps were accordingly taken and eventually the acknowledgement due card accompanying the notice to the applicant company was received back after due service. Steps were accordingly taken and eventually the acknowledgement due card accompanying the notice to the applicant company was received back after due service. This Court by order dated 12.12.2005 on a scrutiny of the averments made in the company petition along with the documents appended thereto and noticing that the applicant company inspite of due service of notice had not arranged for its representation, directed advertisement of the company petition in the prescribed form in the Companies (Court) Rules, 1959 (hereafter referred to as 'Rules') in the issue of dailies "Assam Tribune" and "Aji" mentioning the date of hearing to be 20.3.2006. Accordingly, the advertisements were published in the prescribed form in the issue dated 3.3.2006 of the aforementioned dailies. The clippings of the advertisement published were submitted before the Registry and form a part of the records. The applicant company inspite of the above did not enter appearance and eventually the company petition was heard and disposed of on merits. Logically, in view of the non-response of the applicant company, the averments made in the company petition supported by an affidavit and the documents accompanying the same remained unrebutted. 5. The applicant company's present version is that the notice of the company proceeding was not served upon it, but the same was received by a peon of its Shillong office as at the relevant time none of its Directors was available there. According to it, all its Directors were at that point of time available at its office in New Delhi. However, the Managing Director of the applicant company having been informed about the receipt of the notice, instructed his office to engage a counsel on its (applicant company) behalf and accordingly despatched a duly executed Vakalatnama for the purpose in the last part of October, 2005. Accordingly, Mr. S.A. Laskar, Advocate (since deceased) was engaged on behalf of the applicant company and was entrusted with the brief. The Managing Director of the applicant company thereafter got in touch with the said counsel, who assured that all necessary steps would be taken and that he would be informed well ahead of time if it was essential for him to come to Guwahati for the case. The Managing Director of the applicant company thereafter got in touch with the said counsel, who assured that all necessary steps would be taken and that he would be informed well ahead of time if it was essential for him to come to Guwahati for the case. The applicant company has asserted that thereafter its Managing Director did not receive any information from the said counsel and though he (Managing Director) tried to contact the learned Counsel in the month of December, 2005 and on other subsequent dates, it was of no avail. According to the applicant company it came to learn only in the last part of April, 2007 that one person from the office of the Registrar of Companies had visited its registered office while it was closed with the intimation that it was being comprehended to be wound up. On receiving this information, the Managing Director of the applicant company rushed to Shillong and on ascertainment of the relevant facts could come to learn of the order dated 4.1.2007 passed in the Company petition. In course of his endeavour to contact his lawyer, it further transpired that he had expired way back in January, 2006. The application was thereafter filed on obtaining the certified copy of the judgment and order dated 4.1.2007 and other relevant papers. 6. The applicant company while contending that it had remained under the bonafide belief that its counsel would take necessary steps on its behalf in the company proceeding pleaded that in the interest of justice, the order dated 4.1.2007 ought to be recalled. It is also narrated the facts preceding the institution of the company petition which according to it, would demonstrate the untenability of the claim of the Respondent company as well as its petition under Sections 439 and433(e) of the Act. 7. In its affidavit-in-opposition, the opposite party while conforming that the notice of the company petition was served on the applicant company at its registered office, denied the engagement of Mr. S.A. Laskar (since deceased) as its (applicant company) counsel. 8. An affidavit by one Zaheerul Abbas Laskar, son of Late Suraj Ali Laskar (since deceased) is also available on record to the effect that his father, because of his persistent illness warranting intermittent hospitalization neither attended this Court from December, 2005 nor attended his chamber, or any client or accepted any brief. 8. An affidavit by one Zaheerul Abbas Laskar, son of Late Suraj Ali Laskar (since deceased) is also available on record to the effect that his father, because of his persistent illness warranting intermittent hospitalization neither attended this Court from December, 2005 nor attended his chamber, or any client or accepted any brief. The affidavit further contains a statement that on vigorous search of the chamber of Mr. S.A. Laskar (since deceased) by him, no document/file pertaining to M/s Sheba Wheels Pvt. Ltd. (applicant company) could be located. The deponent confirmed the demise of his father on 11.1.2006 at Guwahati. 9. Mr. Dutta has emphatically argued that the advertisement of the notice of the company proceeding, the prayer being for winding up of the applicant company, not having been made in terms of the mandate of Rules 24 and 96 of the Rules, further proceedings thereof were void and therefore the order dated 4.1.2007 ought to be recalled. He contended that as for a winding up proceeding under the Act, the creditors of the company ought to be notified thereof, a gazette notification as contemplated under Rule 24 of the Rules is a peremptory essentiality, the absence of which per se invalidated the final order. While contending that the admission with regard to the receipt of notice and engagement of a counsel to defend its case discloses a bonafide disposition on the part of the applicant company, the learned senior counsel has emphasized that as inability to pay the debts as contemplated in Section 433(e) presupposes a duty of the defaulting company to make the payment, it is incumbent on the applicant under Section 439 of the Act to disclose all relevant facts pertaining to the issue. Mr. Dutta with reference to Section 439A urged that the opposite party company having failed to discharge its obligation to make the required disclosures in support of its case, the order dated 4.1.2007 even in absence of the applicant company ought not to have been passed. 10. Mr. Bhati, per contra, has submitted that having regard to the orders passed by this Court on 31.8.2005 and 12.12.2005, the assertion of contravention of Rules 24 and 99 of the Rules is liable to be rejected as ex facie unsustainable. 10. Mr. Bhati, per contra, has submitted that having regard to the orders passed by this Court on 31.8.2005 and 12.12.2005, the assertion of contravention of Rules 24 and 99 of the Rules is liable to be rejected as ex facie unsustainable. The learned Counsel argued that the applicant company not having pleaded any prejudice on the manner of service of the notice, such a contention ought not to be entertained. According to Mr. Bhati, the averments made in the application display a casual and negligent outlook of the applicant company vis-a-vis the company proceeding and therefore no sufficient cause having been furnished for its lapse to contest the same, the application ought to be rejected. 11. This Court having regard to the statements recorded hereinabove, is of the view that it would be expedient before permitting a debate on the merit of the opposite party company's prayer for winding up as made in the earlier round of litigation, to examine as to whether the applicant company has been able to furnish sufficient cause in explaining its absence in the company proceeding. 12. The applicant company has candidly disclosed its registered office to be at Zaikur Villa, Bishanpur in the State of Meghalaya and its corporate office at 1/1 B.M. Mohamadpur Bhikaji Cama Place, New Delhi. The address of its registered office at Shillong is the same as provided by the opposite party company in its application under Sections 439 and 433(e) of the Act. It is therefore apparent that the applicant company's registered office has been at Shillong at all relevant times and is also presently located there. It has been admitted by the applicant company that the notice of the company proceeding had been served on its peon at its registered office at Shillong whereupon necessary steps were taken by its Managing Director for its representation through Mr. S.A. Laskar, Advocate (since deceased) in October. 2005. The pleaded facts in the application seem to suggest that the Managing Director thereafter tried to contact the learned Counsel in the month of December, 2005 and thereafter, but failed to do so. The application is conspicuously silent as to the steps taken thereafter by the Managing Director or any other representative of the applicant company in that regard. 2005. The pleaded facts in the application seem to suggest that the Managing Director thereafter tried to contact the learned Counsel in the month of December, 2005 and thereafter, but failed to do so. The application is conspicuously silent as to the steps taken thereafter by the Managing Director or any other representative of the applicant company in that regard. In the meantime, in compliance of the order dated 12.12.2005 of this Court, the notice of the pendency of the company proceeding was advertised in two daily newspapers referred to hereinabove on 3.3.2006. There is no wrangle at the bar that the advertisement so published had been in the form as prescribed by the Rules. The date of hearing of the company petition was also mentioned to be 20.3.2006 therein. Admittedly, again the applicant company did not arrange for its representation even thereafter. 13. A plain reading of Rule 24 proclaim that the advertisement of a petition referred to therein in the official gazette of the State or the Union Territory concerned and in one issue each of daily newspaper in the English language and daily newspaper in the regional language circulating in the State or Union territory concerned would not be necessary if Court orders otherwise. Sub rule (2) of the said Rules empowers the Court, except in case of a petition to wind up a company to dispense with any advertisement as required under the Rules. Rule 24 therefore confers the discretion on the Court to determine the manner of advertisement of the company petition and it is only if it does not otherwise order or the rules otherwise provide an advertisement has to be made in the official gazette and in the daily newspapers as referred to therein. The Court therefore, may in its discretion on an assessment of the attendant facts and circumstances decide the mode of advertisement of a company petition. It is not the case of the applicant company that the newspaper in which the advertisement had been published have no circulation in the State of Meghalaya. Having regard to the tone and tenor of the order dated 12.12.2005 and the purport of Rule 24 as above, the plea of nullity of the earlier proceeding for want of advertisement of the company petition in the official gazette does not commend for acceptance and is thus rejected. 14. Having regard to the tone and tenor of the order dated 12.12.2005 and the purport of Rule 24 as above, the plea of nullity of the earlier proceeding for want of advertisement of the company petition in the official gazette does not commend for acceptance and is thus rejected. 14. The records of the company proceeding do not contain any Vakalatnama filed by Mr. S.A. Laskar (since deceased). There is no other material on record either to substantiate the assertion of his engagement as made by the applicant company. The averments in the affidavit filed by the opposited party and the son of the deceased counsel demonstrate against the applicant company's plea in this regard. In any view of the matter, the application does not disclose steps taken by it between December, 2005 to April, 2007 to keep a track of the company proceeding. This demonstrates a lack of vigilance and concern for the company proceeding which it was aware was then pending before this Court. Having regard to the stakes involved, the Managing Director if had failed to contact its counsel in the month of December, 2005 and thereafter as contended, he ought to have been more careful and meticulous in this regard. The applicant company in the above factual premise, in the opinion of this Court has been guilty of negligence and laches. In absence of any sufficient cause justifying its default in contesting the company proceeding, the same ought not to be condoned. 15. In view of this determination, it is considered inessential to deal with the averments made in the application repudiating the Respondent company's case on merits in the earlier proceeding. This application having failed to provide any cogent or persuasive ground to entertain this belated application, it is hereby rejected. No costs. Petition dismissed