JUDGMENT 1. This is an Application filed by the IDBI Bank, which is a third party to the Original proceedings, praying for discharging the Official Liquidator, who is acting as the Provisional Liquidator, for the Company-Kothari Orient Finance Limited. 2. I have heard Mr. T.K. Seshadri, learned Senior Counsel for the Applicant, Mr. Arvind Shukla, learned Official Liquidator and Mr. Sriram Panchu, learned Senior Counsel for the Third Respondent. 3. The Second Respondent in this Application filed a Company Petition in C.P. No. 179 of 2001, for winding up the Company Kothari Orient Finance Limited. The Second Respondent's wife by name R. Seethalakshmi also filed a similar Petition for winding up in C.P. No. 180 of 2001. Both the Petitions were presented on 2.7.2001 and this Court ordered notice in both the Petitions on 9.8.2001. 4. After completion of service of Notice in both the Company Petitions, they came up for hearing on 5.12.2001. At that time, it was pointed out by the learned Counsel, who entered appearance for the Company, that more than about 400 Criminal Complaints had been lodged against the Company by various depositors and that lot of Complaints were also filed before the Consumer Fora. The learned Counsel appearing for the Company also submitted that they were unable to pay the debts and that the liability was more than the value of the assets. The Counter Affidavit filed by the Company itself disclosed that the Company was commercially insolvent. 5. The Third Respondent herein, who is the Chairman of the Company, came forward at that time to settle the claims of depositors, under two alternative Schemes, within a period of 3 to 4 years. Since the same was not acceptable to the Creditors, the Third Respondent agreed to bring his own personal funds to pay the depositors in installments. He also filed an Affidavit to the said effect. 6. On the basis of the said Affidavit of Undertaking and on their own admission that the Company was commercially insolvent, this Court passed an Order in common in both the Company Petitions, admitting the Company Petitions, directing the publication of advertisements and also appointing Auditors and Administrator. 7. It appears that the Company owed a sum of Rs. 66,55,055/- to a Bank known as “United Western Bank Limited”, as on 31.3.1999. 7. It appears that the Company owed a sum of Rs. 66,55,055/- to a Bank known as “United Western Bank Limited”, as on 31.3.1999. In order to settle their dues, the Board appears to have passed a Resolution on 31.3.1999 to sell a property being office space bearing Nos. 102 & 103 in the first floor of the complex known as “Prestige Point”, at Door No. 33, Haddows Road, Nungambakkam, Chennai-6, measuring a constructed area of 4263 sq.ft., together with undivided share of land in an extent of 2056.89 sq.ft. Thereafter, an Agreement of Sale was entered into on 17.2.2000 by the Company-in-liquidation, with the United Western Bank Limited, for the sale of the said property towards discharge of their liability under a onetime settlement. A consideration of Rs. 1,05,00,000/- was fixed under the Sale Agreement, out of which a sum of Rs. 41 lakhs was paid by the Bank as advance. The balance was to be adjusted against the amounts due by the Company to the Bank. 8. The parties obtained a No Objection Certificate from the Income Tax Department for the sale of the property on 18.4.2000. The possession of the property was handed over by the Company-in-liquidation to the Bank on 6.11.2000. The original Title Deeds were also handed over to the Bank. 9. It was only after nearly about 8 months of the handing over of possession and nearly after 17 months of the execution of the Sale Agreement, that the Petitions for winding up were filed on the file of this Court. Therefore, the Bank appears to have requested the Administrator on 24.7.2002 to execute the Sale Deed. Since the Administrator did not respond, the Bank came up with an Application in C.A. No. 1208 of 2002, seeking a direction to the Administrator to execute the Sale Deed in terms of Section 536 of the Act. 10. But the Company Court dismissed C.A. No. 1208 of 2002 by an Order dated 21.4.2003, on the ground that the transaction would fall under the category of fraudulent preference. 11. Aggrieved by the order of the Company Court, the Bank filed an Appeal in O.S.A. No. 284 of 2003. The Appeal was dismissed by the Division Bench, by an Order dated 17.8.2009. During the pendency of the Appeal, the United Western Bank Limited, got amalgamated with IDBI, which is the Applicant herein, with effect from 3.10.2006. 12. 11. Aggrieved by the order of the Company Court, the Bank filed an Appeal in O.S.A. No. 284 of 2003. The Appeal was dismissed by the Division Bench, by an Order dated 17.8.2009. During the pendency of the Appeal, the United Western Bank Limited, got amalgamated with IDBI, which is the Applicant herein, with effect from 3.10.2006. 12. Therefore, the Applicant filed a Special Leave Petition in SLP(Civil) No. 33825 of 2009 on the file of the Supreme Court. It appears that the Supreme Court ordered notice in the said Special Leave Petition and the same is pending. 13. During the pendency of the Original Side Appeal filed by the Applicant Bank against the rejection of their prayer for execution of a Sale Deed, the Third Respondent herein took out 4 Applications in C.A. Nos. 2482 to 2485 of 2007, praying inter alia for (i) permission to deposit a sum of Rs. 1,76,10,277/-, representing 30% of the amount payable to 4504 depositors; (ii) permission to furnish Bank Guarantee in favour of the Administrator for a sum of Rs. 2,93,50,461/-, representing 50% of the monies payable to 4504 depositors; (iii) recording full and final settlement to all the depositors of the Company and to discharge the Chairman (the 3rd Respondent herein) from any liability to make further payments to the depositors; and (iv) direction to the Investigation Officer of the Economic Offences Wing to release all the properties attached in Criminal proceedings. 14. All the 4 Applications taken out by the Third Respondent herein, in his capacity as the Chairman and Managing Director of the Company-in-liquidation, were disposed of by the Company Court by an Order dated 9.10.2007 with the following directions: (i) that the Chairman should deposit Rs. 14. All the 4 Applications taken out by the Third Respondent herein, in his capacity as the Chairman and Managing Director of the Company-in-liquidation, were disposed of by the Company Court by an Order dated 9.10.2007 with the following directions: (i) that the Chairman should deposit Rs. 4,69,60,738/-, within 2 months from 9.10.2007 with the Administrator; (ii) that the Administrator, upon receipt of the entire amount should issue a letter of full and final satisfaction to the Third Respondent and deposit all the amounts in a regular account maintained by him in a Bank; (iii) that upon production of the letter of full and final satisfaction by the Administrator, the Court of Small Causes, in which Criminal proceedings were pending, should raise the orders of attachment, to enable the Third Respondent to deal and enjoy the property without encumbrances; (iv) that after the payment made by the Third Respondent, the Administrator should disburse the amount to 4504 depositors; (v) that if any claims were made by the remaining 6464 depositors to whom the Third Respondent claims to have paid monies, those claims should be dealt with by the Third Respondent himself independently; and (vi) that if any amount was left with the Administrator, after disbursement, it should be refunded to the Third Respondent. 15. It appears that the Third Respondent complied with the aforesaid directions and the Administrator filed a Report into Court. Accepting the Report, this Court passed an Order on 14.2.2008, permitting the Administrator to return the original Sale Deeds relating to another property, which is not the subject matter of this Application. 16. Again on 23.6.2009, the Applications C.A. Nos. 2482 to 2485 of 2007 came up for hearing on the report filed by the Administrator. On that date, this Court issued several directions, including a direction to refund to the Third Respondent herein, an amount of Rs. 1,95,73,682.44, which represented the amount left undisbursed to the depositors. The Court made it clear that if any claim was made in future by any of the unpaid depositors, the same should be settled by the Third Respondent herein. In order to ensure that the Third Respondent stuck to his undertaking, the Court directed him to make a fixed deposit of Rs. 25 lakhs and hand over the deposit receipt to the Official Liquidator. The Administrator was also discharged by this Court by the said Order. 17. In order to ensure that the Third Respondent stuck to his undertaking, the Court directed him to make a fixed deposit of Rs. 25 lakhs and hand over the deposit receipt to the Official Liquidator. The Administrator was also discharged by this Court by the said Order. 17. After the expiry of one year from the date of the said Order viz., 23.6.2009, the Third Respondent filed an Application in C.A. No. 1716 of 2010 for refund of the fixed deposit of Rs. 25 lakhs, on the ground that after the Order dated 23.6.2009, no depositor came up with any claim. The said Application was allowed by this Court on 2.12.2010. 18. Thereafter, the Applicant has come up with the present Application, praying for a direction to discharge the Official Liquidator. The short grounds on which the Applicant seeks the discharge of the Official Liquidator are (i) that even according to the Third Respondent (Chairman and Managing Director of the Company-in-liquidation) and the Official Liquidator, the claims of 6464 depositors were settled out of Court by the Chairman and the claims of 4504 depositors were settled by the Administrator with 100% payment; (ii) that though the Cheques issued to 1782 depositors returned unclaimed long time ago, no depositor/Creditor came forward to lodge any claim in the past couple of years, leading to this Court releasing the fixed deposit of Rs. 25 lakhs to the Third Respondent in C.A. No. 1716 of 2010; (iii) that as on date, there are no claims by anyone against the Company and the Administrator also stands discharged; and (iv) that therefore, there was no necessity for the Official Liquidator to continue, as nothing survives in the Winding up Petition itself. 19. Before proceeding further, I must also bring on record two more facts viz., (i) that the petitioning Creditor, who filed the main Petition for winding up is not interested in prosecuting the main Petition, as seen from the fact that his Counsel had returned the papers and the petitioning Creditor has not chosen either to engage a new Counsel or to appear in person; and (ii) that till date, the petitioning Creditors had not effected any publication in the newspapers, in compliance with the Order dated 5.12.2001. Therefore, it is contended by the learned Senior Counsel for the Applicant that the Company Petition is liable to be dismissed for non-compliance with statutory provisions, relating to publication of advertisements. 20. The present Application is opposed by the Third Respondent primarily on 4 grounds viz., (i) that once a Company Petition is admitted and a Provisional Liquidator is appointed, the proceedings are intended to go on for the benefit of the entire body of Creditors, without whose presence before Court, the Petition for winding up cannot be dismissed; (ii) that the finding recorded in the earliest Order of this Court dated 5.12.2001 to the effect that the Company is commercially insolvent, has attained finality and hence, the Company Petition cannot be dismissed; (iii) that the failure of the petitioning Creditor to effect publication in newspapers, cannot result in the whole body of Creditors being doomed; and (iv) that the Applicant is actually seeking to achieve through this Application, what they could not achieve in their Application under Section 536(2). 21. The present Application is also opposed by the Official Liquidator on the ground (i) that the Company-in-liquidation availed financial assistance from a consortium of 8 bankers with State Bank of India as the lead banker, with pari passu arrangement; (ii) that some of the bankers have initiated recovery proceedings in O.A. Nos. 978 of 2000, 139 of 2001 and 14 of 2002 on the file of the Debts Recovery Tribunal; (iii) that the Official Liquidator has not so far invited claims from the secured and unsecured Creditors as well as the Workmen and hence, he is not in a position to ascertain the quantum of debts to be settled; (iv) that as per the claims made by the Banks in the Recovery Applications, a sum of Rs. 535 lakhs was due as on 13.8.1998; (v) that Income Tax Assessment was pending for several years; (vi) that as on 1.1.2013, the Official Liquidator has funds to the extent of Rs. 1,27,00,000/- by way of investments, Rs. 3,29,441/- at Bank and Rs. 535 lakhs was due as on 13.8.1998; (v) that Income Tax Assessment was pending for several years; (vi) that as on 1.1.2013, the Official Liquidator has funds to the extent of Rs. 1,27,00,000/- by way of investments, Rs. 3,29,441/- at Bank and Rs. 22/- at cash; (vii) that the Bank has come up with the present Application with the mala fide intention of succeeding in retaining a valuable property, after having lost their Application C.A. No. 1208 of 2002, both before the Company Court and before the Division Bench; (viii) that the Official Liquidator is obliged to discharge certain duties envisaged under Section 457; and (ix) that the Applicant cannot be allowed to score a march over all the other 7 Banks. 22. I have carefully considered the rival submissions. The case on hand presents a very interesting paradox. Normally a Company against which a Petition for winding up is filed, would oppose the same and try to get out of winding up and a Creditor of such a Company would try to ensure that the Company does not go out of winding up. But in the case on hand, the Third Respondent, who was the Chairman of the Company-in-liquidation, wants the liquidation proceedings to continue. However, the Bank wants the proceedings to be terminated. Both of them have their own reasons and agenda, apparent as well as hidden. Therefore, it is necessary to consider the rival submissions, but I shall do so, only after unearthing any hidden agenda behind the stand that the opposing parties have taken. 23. At the outset, there can be no doubt about the fact that the Applicant-Bank has a hidden agenda in seeking to discharge the Official Liquidator. This is for the simple reason that by virtue of an Agreement of Sale entered into on 17.2.2000 by the Company-in-liquidation with the Applicant, the Applicant-Bank became entitled to purchase the property in question for a total sale consideration of Rs. 1,05,00,000/-. After settlement of the entire sale consideration, partly by way of down payment and partly by way of adjustment of the loan amounts due from the Company-in-liquidation, the Applicant-Bank was also put in possession of the property by the Company. But unfortunately, the Applicant-Bank could not get a Sale Deed executed in their favour, before a Petition for winding up came to be filed. But unfortunately, the Applicant-Bank could not get a Sale Deed executed in their favour, before a Petition for winding up came to be filed. The Applicant took possession of the property on 6.11.2000 and the above Company Petition was filed on 2.7.2011. Therefore, the Applicant-Bank came up with an Application in C.A. No. 1208 of 2002 for validation of the transaction and for the execution of a Sale Deed in their favour. But this Application was dismissed by the Company Court and the order was confirmed on Appeal by the Division Bench. The Applicant-Bank is now before the Supreme Court. The only impediment for the Applicant-Bank to perfect their title, is the present proceedings for winding up. Today, the Applicant can retain the property, only if any one of the two things happen viz., (i) a success before the Supreme Court or (ii) the dismissal of the Petition for winding up. If the Petition for winding up is dismissed, the Applicant-Bank need not even pursue their Special Leave Petition in the Supreme Court, since the question of validation of the transaction in terms of Section 536(2) would not arise, after the Company had gone out of winding up. Therefore, the present Application is, in effect, an attempt to take a short cut to success. But, the Applicant-Bank is raising certain legal grounds and if I find those grounds to be valid in the eye of law, it is not for me to get obsessed with the fact that the Applicant is taking a short cut. 24. Having found out the real reason behind the Applicant-Bank seeking the dismissal of the Winding up Petition, let me now explore if the Third Respondent has any hidden agenda, in opposing this Application. 25. As pointed out in the sequence of events, the Second Respondent herein viz., S. Ramaiah and his wife R. Seethalakshmi, had invested monies in fixed deposits in the Company-in-liquidation. After the fixed deposits matured for payment, they made demand for repayment. Since the Company could not make payment, these poor depositors came up with the main Company Petitions C.P. Nos. 179 & 180 of 2001 for the winding up of the Company. 26. On 9.8.2001, this Court ordered notice in both the Company Petitions. After the fixed deposits matured for payment, they made demand for repayment. Since the Company could not make payment, these poor depositors came up with the main Company Petitions C.P. Nos. 179 & 180 of 2001 for the winding up of the Company. 26. On 9.8.2001, this Court ordered notice in both the Company Petitions. After service of notice, the Company entered appearance through Counsel and represented to this Court that more than about 400 Criminal Complaints had been lodged by the depositors against the Company and its Directors. Some of the depositors had gone before the Consumer Fora and some depositors had filed Suits. 27. The Directors of the Company and more particularly, the Third Respondent, found that the only way to escape successful prosecution in those 400 Criminal Complaints, was to enter into a Scheme of Arrangement only with the depositors and not with other Creditors and that too, under the protective cover that the law of winding up offers to such persons. Therefore, the Third Respondent made a voluntary disclosure that the Company was commercially insolvent and also made an offer to settle the claims of all the depositors out of his personal funds. 28. It must be understood that neither the offer of the Third Respondent to settle the dues of all the depositors was born out of charitable objectives nor the declaration made by the Third Respondent that the Company was commercially insolvent born out of honest intentions for a true disclosure. The only object behind the offer made by the Third Respondent to settle all the depositors, was to get immunity from the Criminal action initiated by more than 400 Depositors. This object could not have been achieved, if the Company had gone out of liquidation. Therefore, the Third Respondent also had to make a disclosure that the Company was commercially insolvent, so that the Company Petition for winding up was kept alive providing a cover against all other actions before all other Courts. 29. It is true that the Third Respondent had pumped in lot of his personal funds, to settle the claims of more than about 10,000 Depositors. But as pointed out earlier, it was not done by the Third Respondent out of charity. He did this, to escape the clutches of the Criminal law. 29. It is true that the Third Respondent had pumped in lot of his personal funds, to settle the claims of more than about 10,000 Depositors. But as pointed out earlier, it was not done by the Third Respondent out of charity. He did this, to escape the clutches of the Criminal law. After having succeeded in getting all Criminal cases closed, by making payment out of personal funds, the Third Respondent does not want the other Creditors like the Applicant-Bank, to seek a similar treatment. Therefore, he wants the Winding up proceedings to continue, so that the head-ache of inviting claims from Creditors and adjudicating them, selling the properties of the Company to the extent they are available and declaring a dividend to the Creditors out of the sale proceeds, falls upon the Official Liquidator. 30. Interestingly, the petitioning Creditors in the main Winding up Petitions, were also depositors only. Therefore, the Third Respondent appears to have settled their dues also and hence, they are not interested in pursuing the Winding up Petitions. But the Third Respondent is interested in the continuation of the Winding up proceedings, for one simple reason. If the Company goes out of liquidation, all the remaining secured and unsecured Creditors would naturally pounce upon the Company and the Third Respondent and they have to face a spate of litigation. But if the winding up proceedings continue, all that is required of the ex-directors including the Third Respondent, is to file some statement of affairs and throw their hands up in the air, leaving it entirely to the Official Liquidator to deal with the Creditors. Therefore, the real reason behind the Third Respondent opposing the present Application, is to save himself and the Company from the onslaught of claims by Creditors other than depositors. 31. As a matter of fact, whatever had happened so far in these proceedings, could not be taken to have happened strictly within the four corners of the provisions of the Companies Act, 1956. Once a Company, against whom a Petition is presented under Section 433(e) & (f), declares before this Court even on the first date of hearing that it had become commercially insolvent, then the only thing that this Court should do is to admit the Company Petition. Once a Company, against whom a Petition is presented under Section 433(e) & (f), declares before this Court even on the first date of hearing that it had become commercially insolvent, then the only thing that this Court should do is to admit the Company Petition. Thereafter, neither the Company nor its Directors could be allowed to enter into any kind of arrangement or settlement with some of the Creditors, outside the Court. Any such arrangement is bad in law and it will not normally be recognised by this Court. If such an arrangement was with unsecured Creditors, it will be still worse. 32. But in the case on hand, even while admitting the Company Petition on 5.12.2001, this Court allowed the Third Respondent herein to bring his own personal funds, for the purpose of payment to the depositors. It is needless to point out that the depositors are only the unsecured Creditors of the Company-in-liquidation. Once a Company Petition is admitted, these depositors who are unsecured Creditors, are expected to await the Notification inviting claims and then file Form 66 with the Official Liquidator. After adjudication of their claims, they have to await the declaration of dividend by the Official Liquidator. But this procedure prescribed by the Companies Act, was relaxed by this Court, while passing the order of admission of the Company Petition on 5.12.2001. 33. Under the Companies Act, 1956, any payment made and any disposition of property made within 3 months preceding the date of filing of the Winding up Petition, can be set aside as if it was a fraudulent preference. Even if the promoter of a Company comes forward to pump in his personal funds, the same has to be routed only through the Official Liquidator and that too after inviting claims and adjudicating upon the same. As a matter of fact, Section 454(7) makes it a punishable offence if a person untruthfully claims to be a Creditor. These checks and balances provided in the Act, were relaxed by this Court when an Order was passed on 5.12.2001, permitting the Third Respondent to settle thousands of depositors, who were unsecured Creditors, by bringing in his own personal funds. 34. Since I have to test the present claim of the Applicant-Bank on the strength of the above developments, it is necessary to extract the relevant portion of the Order dated 5.12.2001. 34. Since I have to test the present claim of the Applicant-Bank on the strength of the above developments, it is necessary to extract the relevant portion of the Order dated 5.12.2001. Hence, it is extracted as follows: “3. Mr. R. Saseedharan, learned Counsel entered appearance for the Respondent-Company, Mr. Saseedharan, filed Counter Affidavit and additional Affidavit of the Respondent, besides a report as to the state of affairs as disclosed by the Respondent-Company. 4. It is also admitted that around four hundred and odd Criminal Complaints against the Respondent-Company been registered by various depositors, with Police besides the Company is facing proceedings before various District Consumer Disputes Redressal Forums. The Respondent-Company had also instituted number of suits and they are pending. 5. It is fairly admitted on behalf of the Respondent-Company by Mr. R. Saseedharan that the Company is factually unable to pay its debts. Concedingly, the liability is more than the available assets as well as what is receivable. The Company has not only received substantial deposits but also raised various secured loans, the details of which, we are not concerned, at this stage. 6. It is seen from the Counter Affidavit and the additional Counter Affidavit that the Company is not only unable to pay its debts but also commercially insolvent. Mr. Mohandoss, the Chief Executive and one of the Directors, Mr. Sanjeevi, Officer of the Respondent-Company are present and in fact consecutively for the past few days they are present before Court. A sworn Affidavit of Mr. Pradip D. Kothari who is the Chairman and Managing Director of the Respondent-Company has been filed. Though Mr. Pradip D. Kothari suggested two schemes to repay the minimum portion of the depositors over a period of 3/4 years, both the Schemes are not acceptable to any one. This Court is also thoroughly not satisfied with the scheme. Mr. Pradip D. Kothari agreed to bring his own personal funds to pay the depositors in instalments and that too a small portion. The total number of debtors as well as Creditors been set out, so also the total amount of debts, receivables, amount advanced, available securities have also been set out. 7. Mr. Pradip D. Kothari had already filed as Affidavit undertaking that he is agreeable to bring his own funds to pay the depositors. The said Affidavit of undertaking is recorded. 8. Mr. 7. Mr. Pradip D. Kothari had already filed as Affidavit undertaking that he is agreeable to bring his own funds to pay the depositors. The said Affidavit of undertaking is recorded. 8. Mr. Pradip D. Kothari had filed an additional Affidavit today with a No Objection Letter given by his mother Tmt. Indira D. Kothari. The same is also recorded. 9. Mr. Pradip D. Kothari shall bring in the amounts assured and all his assets as undertaken by him for the benefit of the depositors and body of Creditors of the Respondent-Company and he shall not alienate any of his immovable properties, or other valuable assets, shares, deposits, investments and other movables whatsoever without the leave of this Court. Apart from the admission that the Company is unable to pay its debts, it is commercially insolvent and lost its substratum factually. On behalf of the Respondent-Company it is also stated that the Respondent-Company has no objection for the Company Petitions being admitted and publication being ordered and Provisional Liquidator being appointed besides an Administrator to take charge and manage the Respondent-Company. 10. In the circumstances, this Court while taking the view that prima facie case has been made out, issue the following directions: (i) Admit the Company Petitions. (ii) The Petitioner shall publish the Company Petitions in one issue of English Daily “News Today” and Tamil Daily “Dinamalar” returnable on 24.1.2002 and also publish the Company Petitions in the Government Gazette returnable on the same date. (iii) The Respondent-Company is directed to deposit Rs. 10,000/- (Rupees Ten Thousand only) with the Official Liquidator forthwith, which Mr. R. Sashidharan readily agreed to deposit shortly. (iv) All the Directors of the Respondent-Company and its Principal Officer, Chief Officer and Officers as of today, are directed to file Affidavits setting out the affairs as hitherto carried on by the Respondent-Company, within two weeks from today. (v) All the Directors, Principal Officer, Chief Executive and Officers shall also file the full particulars of the properties held or owned by them or acquired disposed of by them, within the last five years, value of properties, investments, all valuable assets both immovables and movables, by filing a separate statement. (v) All the Directors, Principal Officer, Chief Executive and Officers shall also file the full particulars of the properties held or owned by them or acquired disposed of by them, within the last five years, value of properties, investments, all valuable assets both immovables and movables, by filing a separate statement. (vi) This Court appoints M/s. Rengal & Krishnan, Chartered Accountants, No. 17, Kennady Ist Street, Mylapore, Madras-4 to go into the accounts, ledgers, alla transactions, advances, deposits, investments and entire affairs of the Respondent-Company, investigate the legality or otherwise of each transaction and file a Report. The Auditor shall file a Preliminary Report within 3/4 weeks. The Respondent-Company shall unhesitatingly place all the books, registers, files, computers and whatsoever required by the Auditor for his investigation. (vii) The remuneration of the Auditor and the Administrator will be fixed at a later date and they may move this Court for further directions as they deem fit from time to time.” 35. As I have pointed out earlier, the Third Respondent came forward to settle the claims of about 10,000 depositors by pumping in his own personal funds, not out of charity nor out of nobility. He was facing about 400 Criminal Complaints and prosecution under the Tamil Nadu Protection of Interest of Depositors Act, 1997. Under the Act, his own personal properties were liable for attachment. Therefore, the Third Respondent was compelled to settle those claims and that too with the blessings of this Court, so that he enjoyed some immunity. 36. As I have pointed out earlier, the Third Respondent appears to have enjoyed a special privilege (i) by securing the permission of this Court to settle about 10,000 Depositors, partly through the Official Liquidator and partly outside this Court (ii) by bringing in his own personal funds to settle 4,504 Depositors at the rate of 30% (iii) by getting his property released from attachment not only from this Court, but also from the Criminal Court in Crl.O.P. No. 3 of 2004, and (iv) by getting the original Title Deeds relating to his documents released from the Administrator. 37. What is worse is the fact that the Third Respondent walked out with a refund of Rs. 1,95,73,682.44, under an Order dated 23.6.2009 passed by this Court in C.A. No. 2482 to 2485 of 2007. 37. What is worse is the fact that the Third Respondent walked out with a refund of Rs. 1,95,73,682.44, under an Order dated 23.6.2009 passed by this Court in C.A. No. 2482 to 2485 of 2007. I do not think that any contributory or promoter of a Company ever walked out of the winding up Court with a refund of so much of money, except in cases where a surplus was left with the Official Liquidator after payment of dividend of 100 paise in a rupee to all Creditors including the workmen. I am conscious of the fact that the Third Respondent walked out with the amount that was brought in by him as his own personal funds. But the line of demarcation between the promoter's personal funds and the Company's funds is very thin and the Third Respondent would not have had this benefit if the prosecution had continued under the Tamil Nadu Protection of Interest of Depositors Act, 1997. 38. Therefore, it is in the above background of facts and the special privilege that the Third Respondent had enjoyed from this Court, that his opposition to the Application of the Bank has to be considered. The first ground on which the Applicant seeks a discharge of the Official Liquidator is that more than about 10,000 Depositors have admittedly received 100% payment and that even the Administrator appointed by this Court has already been discharged. But on this ground, I cannot discharge the Official Liquidator, since there are other Creditors such as Banks who have gone before the Debts Recovery Tribunal. The Official Liquidator is yet to invite claims from the Creditors of the Company. Only one set of Creditors viz., the depositors have received payments either in full or in full and final settlement. None of the other Creditors has received any payment. Therefore, on the ground that nothing more remains to be done, the Official Liquidator cannot be discharged. 39. The next ground on which the Applicant seeks the discharge of the Official Liquidator and the dismissal of the Company Petition is that so far no publication has been effected in the newspapers in compliance with the Order dated 5.12.2001. Since publication of notices is mandatory, the failure of the petitioning Creditors to effect publication is fatal to the continuance of the Company Petition. This contention of the Applicant requires deeper scrutiny with regard to statutory provisions. Since publication of notices is mandatory, the failure of the petitioning Creditors to effect publication is fatal to the continuance of the Company Petition. This contention of the Applicant requires deeper scrutiny with regard to statutory provisions. Therefore, I shall now take up the statutory provisions with regard to this aspect. 40. A Petition for winding up can be presented under Section 439(1) of the Act, either by the Company, or by any Creditor or by any contributory or by the Registrar or by the person authorised by the Central Government or by the Central Government or the State Government, in cases falling under Section 433(h). Though Section 443(1) lists out the various options available to the Company Court while hearing a Petition for winding up, the detailed procedure as to how the Company Court should go about, has to be traced to the Companies (Court) Rules, 1959. 41. Rule 95 of the aforesaid Rules stipulates that a Petition for winding up shall be in Form Nos. 45, 46 or 47, as the case may be, with such variations as the circumstances may require. Rule 96 stipulates that upon the filing of the Petition for winding up, it shall be posted before the Judge in Chambers for admission and for fixing a date for the hearing thereof and for directions as to advertisements to be published. Rule 96 reads as follows: “Rule 96. 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 of the 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.” 42. Rule 99 mandates that subject to any directions of the Court, the Petition for winding up shall be advertised within the time and in the manner provided by Rule 24 of the Rules. The advertisement is to be in Form No. 48. Rule 99 reads as follows: “Rule 99. Advertisement of Petition.— Subject to any directions of the Court, the Petition shall be advertised within the time and in the manner provided by Rule 24 of these Rules. The advertisement is to be in Form No. 48. Rule 99 reads as follows: “Rule 99. Advertisement of Petition.— Subject to any directions of the Court, the Petition shall be advertised within the time and in the manner provided by Rule 24 of these Rules. The advertisement shall be in Form No. 48.” 43. Since Rule 99 makes a reference to Rule 24, let us also take a look at Rule 24, which reads as follows: “Rule 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.” 44. The use of the expression “shall” in Rule 99 indicates that advertisement is mandatory. But sometimes Courts have interpreted the expression “shall” to mean “may” and vice-versa. Therefore, for the present, I would keep aside the expression “shall” appearing in Rule 99. 45. Even then Rule 24(2) shows that the Company Court does not even have the power to dispense with any advertisement, in the case of proceedings for winding up. While Rule 24(2) confers a discretion upon the Court to dispense with any advertisement, in respect of all other matters where such advertisement is mandated by the Rules, the Rule does not provide such a leverage to Winding up proceedings. 46. Apart from the clue that is provided in Rule 24(2), there is also one more clue in Rule 100. Rule 100 reads as follows: “Rule 100. Application for leave to withdraw Petition.—(1) A Petition for winding-up shall not be withdrawn after presentation without the leave of the Court. (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.” 47. (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.” 47. Sub-rule (2) of Rule 100 prohibits even the hearing of an Application for leave to withdraw a Winding up Petition, until the date fixed in the advertisement for the hearing of the parties. 48. But the question as to what happens when a Petitioner fails to advertise his Petition within the time fixed by this Court, is dealt with by Rule 101. Rule 101 reads as follows: “Rule 101. Substitution of Creditor or contributory for original Petitioner.—Where a Petitioner— (1) is not entitled to present a Petition, or (2) fails to advertise his Petition within the time prescribed by these Rules or by order of Court or such extended time as the Court may allow, or (3) consents to withdraw the Petition, or to allow it to be dismissed, or the hearing to be adjourned or fails to appear in support of his Petition when it is called on in Court on the day originally fixed for the hearing thereof, or any day to which the hearing has been adjourned, or (4) if appearing, does not apply for an order in terms of the prayer of his Petition or where in the opinion of the Court there is other sufficient cause for an order being made under this Rule, the Court may, upon such terms as it may think just, substitute as Petitioner any Creditor or contributory who, in the opinion of the Court, would have a right to present a Petition, and who is desirous of prosecuting the Petition.” 49. Therefore, it appears that the Court has powers to substitute as Petitioner, any Creditor or contributory, in the place of the original petitioning Creditor. But two conditions are to be satisfied for the invocation of Rule 101. They are (i) the person, who gets substituted, should have a right to present a Petition, and (ii) such person is desirous of prosecuting the Petition. 50. Today, no other Creditor or contributory has come to this Court expressing a desire to prosecute the Original Petition for winding up. Interestingly, the Third Respondent has not made any offer to prosecute the Original Petition. 50. Today, no other Creditor or contributory has come to this Court expressing a desire to prosecute the Original Petition for winding up. Interestingly, the Third Respondent has not made any offer to prosecute the Original Petition. Even in the course of hearing of the present Application, the Third Respondent who was the Chairman of the Company, could have made an offer to prosecute the Petition, by getting substituted in the place of the original petitioning Creditor. But he did not do so. The Banks have already gone to the Debts Recovery Tribunal and they have also not chosen to come before this Court, despite the fact that the above Company Petition is pending for the past about 12 years and many things have happened both within and without the purview of the provisions of the Companies Act. Therefore, I do not think that the Third Respondent can today take umbrage under Rule 101. 51. Way back in 1967, the Supreme Court made it clear in National Conduits (P) Ltd. v. S.S. Arora, AIR 1968 SC 279 , that when a Petition for winding up is filed, the High Court has 3 alternatives viz., (i) to issue notice to the Company to show cause as to why the Petition should not be admitted (ii) to admit the Petition and fix a date of hearing and issue a notice to the Company before giving directions about advertisement, or (iii) to admit the Petition, fix the date of hearing and order that the Petition be advertised. After having pointed out these 3 alternatives, the Supreme Court held that “a Petition for winding up cannot be placed for hearing before the Court unless the Petition is advertised, that is clear from the terms of Rule 24(2)”. Though the Supreme Court made it clear that the Company Court has the option of not directing the publication of advertisement and also has powers to entertain a plea from the Company not to direct advertisement, the interpretation to be given to Rule 24(2) was settled in this decision by the Supreme Court. 52. Interestingly, the above position of law was reiterated in Kothari Industrial Corporation Ltd. v. Kotak Mahindra Bank Ltd., 2009 (151) CC 44, and the beneficiary of the said decision viz., Kothari Industrial Corporation Ltd., is one of the group companies of the Company-in-liquidation. 52. Interestingly, the above position of law was reiterated in Kothari Industrial Corporation Ltd. v. Kotak Mahindra Bank Ltd., 2009 (151) CC 44, and the beneficiary of the said decision viz., Kothari Industrial Corporation Ltd., is one of the group companies of the Company-in-liquidation. It was their contention in that case that the admission of a Company Petition and the advertisement of the same as per Rules 24 & 96 are mandatory. 53. In U.P. Twiga Fiberglass Ltd. v. Parekh Marketing Pvt. Ltd., 1986 (59) CC 886 , a Division Bench of the Allahabad High Court considered on Appeal, a question, among others, as to whether the non-publication of the advertisement in the Gazette would be violative of Rule 24. In that case, the Company Judge ordered the publication of advertisements in one English Daily and one Vernacular Daily, but not in the Gazette. The Division Bench of the Allahabad High Court held that Rule 24(1) contains a rider “unless the Judge otherwise orders” and that Rule 99 also speaks about “subject to any directions of the Court”. A similar view with regard to the power of the Company Court to dispense with the publication of advertisement in the Government Gazette was taken by a Division Bench of the Gujarat High Court in Plastisac P. Ltd. v. Gujarat Lease Finance Ltd., 2000 (101) CC 334 (Guj.). But a Division Bench of the Delhi High Court disagreed with the views expressed by the Allahabad and Gujarat High Courts, with regard to the power of the Company Court to dispense with the publication of advertisement in the Official Gazette. In Lt. Col. R.K. Saxena v. Imperial Forestry Corporation, 2001 (107) CC 401 (Del.), a Division Bench of the Delhi High Court, after a careful consideration of Rules 96, 99 & 24 held that “the publication of the advertisement of a Petition for winding up is mandatory, even in respect of the Official Gazette”. On the scope of the discretion conferred by Rule 99, the Delhi High Court held that the discretion is limited only to the extent of deciding at what stage the Petition is to be advertised. On the scope of the discretion conferred by Rule 99, the Delhi High Court held that the discretion is limited only to the extent of deciding at what stage the Petition is to be advertised. The contention that the Company Court has inherent powers by virtue of Rule 9 even to dispense with the requirement of Rule 24, was also rejected by the Delhi High Court on the ground that “if a statute requires a thing to be done in a particular manner, it shall be done in that manner or not at all”. 54. Though there was a difference of opinion between the Allahabad and Gujarat High Courts on the one hand and the Delhi High Court on the other hand, with regard to the power to dispense with the publication of advertisement in the Official Gazette, all these Courts were unanimous in their opinion at least with regard to the mandatory nature of the requirement of publication of advertisements, in one English Daily and one Vernacular Daily as ordered by the Company Judge. Therefore, it is clear that publication of advertisements is mandatory. Irrespective of whether the Court has any discretion to dispense with the publication in the Gazette or not, the publication of advertisements at least in newspapers is mandatory and the failure of the petitioning Creditor to comply with this requirement despite a positive order to that effect, is fatal to his Petition. 55. In Falcon Gulf Ceramics Ltd. v. Industrial Designs Bureau, 1996 (86) CC 207 (Raj.), a Division Bench of the Rajasthan High Court set aside an order of winding up passed by the Company Court, on the sole ground that the winding up order was not preceded by an advertisement. The Division Bench of the Rajasthan High Court held in that case that advertisement of a Petition was imperative in view of the provisions of Rule 96 read with Rule 99. For holding so, the Division Bench of the Rajasthan High Court relied upon Paragraph 1463 of Halsbury's Laws of England (4th Edition), which stated that non-compliance with these provisions is a ground on which the Court shall reject the Petition. For holding so, the Division Bench of the Rajasthan High Court relied upon Paragraph 1463 of Halsbury's Laws of England (4th Edition), which stated that non-compliance with these provisions is a ground on which the Court shall reject the Petition. After citing the relevant passage from the decision of the Supreme Court in National Conduits, the Division Bench held in Para 16 of its decision that in the absence of advertisement and admission, the Petition for winding up was bound to be rejected. 56. It is true that the Company Court exercises parens patriae power in relation to a Company-in-liquidation, as held by the Supreme Court in Bakemans Industries P. Ltd. v. New Cawnpore Flour Mills, 2008 (144) CC 71 (SC). This Court has a statutory obligation to safeguard the interests of all Creditors both secured and unsecured as well as the workmen Creditors. The Supreme Court pointed out in the said case that the powers and functions of a Provisional Liquidator, for all intent and purport, would be the same as that of the Official Liquidator and that therefore, the interests of the whole body of Creditors and not merely of Secured Creditors should be taken care of. 57. There can be no quarrel with the above proposition. It is true that a Petition for winding up, whether initiated at the instance of one Creditor or at the instance of the Company or at the instance of a contributory, takes the shape of a proceeding of a representative character. This is why a Petition for winding up cannot even be withdrawn without the leave of the Court, as per Rule 100(1). A proceeding for winding up is almost like a proceeding under Order 1, Rule 8, though the institution of such a proceeding does not require the permission of the Court as required by Order 1, Rule 8(1)(a) of the Code of Civil Procedure. But there is one striking difference. Under Order 1, Rule 8(5) of the Code, the Court has the power to substitute any other person who has the same interest in the Suit, if the person suing does not proceed with due diligence. To exercise the power under Order 1, Rule 8(5), the Court is merely obliged to see if any one is having the same interest in the Suit. To exercise the power under Order 1, Rule 8(5), the Court is merely obliged to see if any one is having the same interest in the Suit. In contrast, a Company Court is obliged under Rule 101, before ordering substitution, to see (i) if the person proposed to be substituted, otherwise has a right to present the Petition for winding up, and (ii) if such person is desirous of prosecuting the same. 58. It is not without any basis that Rule 101 stipulates two conditions for ordering substitution. The first condition under Rule 101 is that the person, who is proposed to be substituted in the place of the original petitioning Creditor, should, in the opinion of the Court have a right to present the petition for winding up. Therefore it is axiomatic that if the proposed substitute is a Creditor, he should have already served a statutory notice in terms of Section 433. Otherwise, he will not be considered to be a Creditor, who has a right to present the Petition for winding up. It is needless to emphasis that a right to present the Petition for winding up accrues to a Creditor only after the service of a statutory Notice on the Company. Today, I do not find any such person who would satisfy the twin requirements of Rule 101. 59. An interesting case came up before the Kerala High Court, that resulted in 3 reported decisions on the scope of interpretation of Rule 101. Two Firms dealing in gunny bags, filed a Company Petition for winding up against a Private Limited Company by name L.R. Rangaier Sons P. Ltd., on the ground that the Company was indebted to them and that they were unable to repay the debt. When the Petition was presented, the Company in question entered appearance and took notice. After hearing, the Court appointed the Official Liquidator as the Provisional Liquidator and a number of interested parties including the Coffee Board, got impleaded as additional Respondents in the main Petition. The Company made proposals for revival and the Company in fact paid off the debts due to the original petitioning Creditors and even entered into arrangements with the Banks. Consequently, the original petitioning Creditors lost interest in pursuing the Winding up Petition. Therefore, the main Petition was dismissed on technical grounds. The Company made proposals for revival and the Company in fact paid off the debts due to the original petitioning Creditors and even entered into arrangements with the Banks. Consequently, the original petitioning Creditors lost interest in pursuing the Winding up Petition. Therefore, the main Petition was dismissed on technical grounds. Later, the Coffee Board, which had earlier got impleaded as the 22nd Respondent in the main Company Petition, filed an Application under Rule 101 for substituting themselves in the place of the Original Petitioners and for allowing them to prosecute the winding up proceedings. The Petition for substitution was allowed by the Company Court and the decision was reported in In re: L.R. Rangaier and Sons (P) Ltd., 1999 (96) CC 579 (Ker.). It was held in the said decision as follows: “The transposition contemplated under Rule 101 of the Companies (Court) Rules, cannot postulate a situation where a person who has issued a Notice and is waiting for filing Company Petition is to be transposed as an Original Petitioner. Such a Petitioner need not come as a Petitioner by way of transposition. He has got every right to file a Petition. The transposition comes into play only in a situation where the original Applicant disappears from the scene for some reason or other and there are other parties to the Petition who have got similar interest in the prosecution of the Petition. Therefore, it is only to be noticed whether the Coffee Board is really a Creditor of the Company or not. Only in that sense the word “Creditor” in Rule 101 is to be interpreted. Otherwise as indicated earlier there is no scope for a Creditor who satisfies the ingredients of Sections 433 & 434 to seek permission for transposition. Considering this matter in the above perspective I am of the view that the Coffee Board satisfies the ingredients of Rule 101 for transposition in the Original Petition in order to prosecute the Petition.” 60. The said decision of the Company Court was taken on Appeal before a Division Bench. The Division Bench upheld the decision of the Company Court and the decision of the Division Bench is reported in L.R. Rangaier And Sons v. Coffee Board, 1999 (97) CC 205. The said decision of the Company Court was taken on Appeal before a Division Bench. The Division Bench upheld the decision of the Company Court and the decision of the Division Bench is reported in L.R. Rangaier And Sons v. Coffee Board, 1999 (97) CC 205. Interestingly, the Division Bench upheld the order of the Company Judge, for a different reason viz., that even after substitution, the Company-in-liquidation will be entitled to oppose the right of the substituted Creditor, on the ground that he did not have a right to present the Petition. The relevant portion of the Order of the Division Bench reads as follows: “The sole question with which we are concerned is whether the learned Company Judge is justified in passing an order allowing substitution of the Coffee Board as the Petitioner in the above Company Petition. As observed earlier, Rule 101 confers a wide discretion on the Court to substitute as Petitioner any Creditor or contributory who in the opinion of the Court would have the right to present a Petition. This would indicate that when the Court is prima facie satisfied from the circumstances of the case that the Petitioner has a right to file a Petition for winding up it shall allow him to be substituted as Petitioner in the Winding up Petition. Though substitution is not automatic it can be allowed if the Court is prima facie satisfied of the case. That means, no final conclusion of the questions may be necessary at the stage of substitution because even after the substitution the opposing parties have the right to oppose the amended Petition under Rule 103. The main opposition just as in the present case would always be that the substituted Petitioner is not a Creditor or contributory who is not entitled to file an Application for winding up. What Rule 101 suggests is that in order to allow substitution the Court must be of the opinion that such person would have a right to present a Petition. Under Section 439(1)(b), a Petition for winding up may be presented by any Creditor including a contingent or prospective Creditor. What Rule 101 suggests is that in order to allow substitution the Court must be of the opinion that such person would have a right to present a Petition. Under Section 439(1)(b), a Petition for winding up may be presented by any Creditor including a contingent or prospective Creditor. The above provisions would sufficiently indicate that even after the substitution of a Creditor as Petitioner, the opposing party can produce sufficient evidence to establish that he is not a Creditor or a contingent or prospective Creditor who would have right to present a Petition for winding up.” 61. In view of the above observations of the Division Bench, the Company-in-liquidation initiated a second round of litigation, by filing an Affidavit in opposition to the eligibility of the Coffee Board to pursue the Original Petition for winding up. This was on the ground that the Coffee Board did not qualify to file a Petition under Section 433, as they had not issued the statutory Notice as contemplated by Section 434. Rejecting the objection relating to maintainability, another learned Judge of the Kerala High Court held in Perfect Gunny Stores v. L.R. Rangaier Sons P. Ltd., 2003 (115) CC 354, that the compliance with the requirements of Section 434 (issue of statutory notice) cannot be insisted upon, for the purpose of transposition of one Creditor in the place of the original petitioning Creditor. The Court pointed out that the Coffee Board (substituted Petitioner) got impleaded as the 22nd Respondent in the Original Petition and had waited for 10 years and that therefore, it would not be appropriate to direct the Coffee Board to go to the Civil Court at that stage. 62. But, there are two difficulties in accepting the above decision of the Kerala High Court, as settling the law relating to the twin requirements of Rule 101. The first is that Rule 101 is not about transposition, but about substitution. The second is that the Kerala High Court had the benefit of one of the parties to the main Company Petition coming up with an Application under Rule 101. Therefore, there was scope for the Kerala High Court to treat the Application as one for transposition of the 22nd Respondent as the Petitioner. The second is that the Kerala High Court had the benefit of one of the parties to the main Company Petition coming up with an Application under Rule 101. Therefore, there was scope for the Kerala High Court to treat the Application as one for transposition of the 22nd Respondent as the Petitioner. Such transposition is permissible under Order 23, Rule 1-A of the Code of Civil Procedure, which applies mutatis mutandis to the proceedings before the Company Court, by virtue of Rule 6 of the Companies (Courts) Rules, 1959. The only tests to be satisfied for transposing a Defendant as a Plaintiff are (i) the withdrawal or abandonment of a claim by the Plaintiff, and (ii) the existence of a substantial question that the Applicant seeks to get decided against the other Defendants. Therefore, if a person, who is already a Respondent in a Company Petition for winding up seeks to transpose himself as a Petitioner in terms of Order 23, Rule 1-A of the Code, the test applied by the Kerala High Court would certainly hold good. But in cases like the one on hand, where a Creditor or a contributory has to be newly imported into the litigation and substituted in the place of the original Petitioner, he must satisfy the twin tests prescribed by Rule 101. 63. I must also point out that the Third Respondent who is a contributory, could have taken advantage of the decision of the Kerala High Court by filing an Application under Rule 101 and seeking a transposition on the ground that he is already a party to the main Petition. But he did not do so. This is perhaps due to the fact that if he gets transposed as the original Petitioner, he would have to answer several questions. Therefore, the benefit of transposition, assuming without admitting for a moment that it is permissible, cannot be granted to the Third Respondent also. 64. As I have pointed out earlier, Rule 101 is clear in its mandate that the Court can substitute a Creditor in the place of the original petitioning Creditor, only if in its opinion, the substituted Petitioner would have the right to present a Petition by himself. The right to present a Petition accrues only upon the satisfactory compliance with the mandate of law. 65. The right to present a Petition accrues only upon the satisfactory compliance with the mandate of law. 65. Moreover, the issue is not one of maintainability, as projected before the Kerala High Court. The issue is the right of the Creditor who had not issued a statutory notice, to get substituted. A Creditor gets a right to present a Petition for winding up only after the issue of statutory Notice. If a Creditor, who did not issue the statutory Notice, is substituted, it may not, as opined by the Kerala High Court, hit at the maintainability of the Original Petition. But it will strike at the root of his entitlement to be substituted. As I have pointed out earlier, the Division Bench of the Kerala High Court, even while upholding the first Order under Rule 101, made it clear that even after substitution, the substituted person should establish his entitlement to proceed with the Petition. But if this view is accepted, the Company Court would be compelled to consider post facto the question as to whether there was a legally enforceable debt due to the substituted person, so as to entitle him to an order for advertisement of the Petition. This will only lead to one uncertainty followed by another. An interpretation to a Rule cannot result in a position where the proceedings are plunged in several uncertainties. Therefore, there is no question of following Rule 101 in this case. Consequently, the Company Petition is liable to be thrown out, for the failure of the petitioning Creditor to advertise the same. 66. After having found (i) that advertisement of the Petition is mandatory and cannot even be dispensed with; and (ii) that substitution in terms of Rule 101 in this case, is not feasible, it is my duty now to deal with the objections of the Third Respondent and the Official Liquidator to the above Application of IDBI. Therefore, I shall take up their objections one by one. 67. Therefore, I shall take up their objections one by one. 67. As pointed out earlier, the objections of the Third Respondent to the present Application is 4 fold viz., (i) that the proceedings for winding up intended to go for the benefit of the entire body of Creditors, cannot be dismissed behind the back of the Creditors; (ii) that in view of the finding recorded in the earliest Order of this Court dated 5.12.2001 that the Company has become commercially insolvent, there is no alternative but to wind up; (iii) that the failure of the petitioning Creditor to effect publication cannot result in injury to the other Creditors; and (iv) that the Applicant is now attempting to achieve what they could not achieve in their Application under Section 536(2). 68. It is true that a Petition for winding up enures actually for the benefit of the entire body of Creditors and that those Creditors are not before this Court. But as I have pointed out earlier, the above Company Petition was presented in July 2001 and was admitted on 5.12.2001. In the past 12 years, it is claimed even by the Third Respondent that more than about 10,000 depositors, who are also Creditors of the Company, got their fixed deposits settled either through the Administrator appointed by this Court or outside the Court. More than about 400 Criminal cases had come to be closed and the Third Respondent claims to have pumped in his personal funds to settle those depositors. His own personal properties were under attachment before the Criminal Court and the Third Respondent got the attachment raised under protective Orders of this Court. The Third Respondent virtually made use of this Court to save his skin from the Criminal cases. Despite this whole drama unfolding in public in day light, no Creditor either secured or unsecured, other than the deposit holders, ever came up before this Court. The invitation of claims by the Administrator appointed by this Court, had happened through the newspaper publications. Therefore, the first contention that the Company Petition cannot be dismissed behind the back of the entire body of Creditors coming as it does from the Third Respondent, is only like the Wolf shedding tears for the lamb. 69. The invitation of claims by the Administrator appointed by this Court, had happened through the newspaper publications. Therefore, the first contention that the Company Petition cannot be dismissed behind the back of the entire body of Creditors coming as it does from the Third Respondent, is only like the Wolf shedding tears for the lamb. 69. The second contention that in the light of the finding recorded in the Order dated 5.12.2001 that the Company has become commercially insolvent, there is no alternative except to wind up the Company, cannot also be accepted. Admittedly, more than 10,000 Depositors had been settled both inside and outside this Court to the tune of more than Rs. 7 crores. The Third Respondent may claim that all the money used to settle the claims of depositors were his own personal funds. But the fact remains that the Third Respondent, as a contributory, could pump in so much of money to save the Company and the Directors from the Criminal prosecution under the provisions of the Indian Penal Code and the Tamil Nadu Protection of Interest of Depositors Act, 1997. The question as to whether the monies brought in by the Third Respondent were actually his personal funds or the funds that earlier belonged to the Company, is a moot question into which I would not go. But a perusal of the Order dated 5.12.2001 would show (i) that the finding that the Company was commercially insolvent, recorded in the Order dated 5.12.2001 was only a prima facie finding; and (ii) that at any rate, it was a finding recorded on a self-serving admission made by the Third Respondent. I do not propose to attach any value to the same, as the said finding was only a consequence of the Third Respondent's admission. 70. The third contention that the failure of one petitioning Creditor to follow the procedure, cannot result in injustice to the whole body of Creditors, cannot also be accepted. The Companies Act, 1956 and the Companies (Courts) Rules, 1959, constitute a complete Code in themselves. When a petitioning Creditor fails to advertise a Petition, even after a direction is issued to him to do so, the only alternative available to the Court is to follow the procedure prescribed by Rule 101. If this is found not feasible of compliance, there is no alternative except to reject the Petition. 71. When a petitioning Creditor fails to advertise a Petition, even after a direction is issued to him to do so, the only alternative available to the Court is to follow the procedure prescribed by Rule 101. If this is found not feasible of compliance, there is no alternative except to reject the Petition. 71. The fourth contention that the Applicant is actually seeking to achieve through this Application what they could not achieve in their Application under Section 536(2), does not merit acceptance. This is for the simple reason that the discharge of the Official Liquidator and the dismissal of the Winding up Petition is not going to result automatically in the Applicant getting title to the property in question. The Applicant Bank's endeavour in their Petition C.A. No. 1208 of 2002 was to get a Sale Deed executed in their favour. The Applicant-Bank, when they filed C.A. No. 1208 of 2002 under Section 536(2) were only agreement holders who had paid the entire sale consideration and put in possession of the property. Their Application for execution of the Sale Deed was rejected by this Court and the matter is pending adjudication before the Supreme Court. The same has nothing to do with the present Application. The rejection of this Application is not going to be a decree for Specific Performance in favour of the Applicant-Bank. Perhaps they may have to start a litigation all over again for achieving the said object, if they lose their battle in the Supreme Court. Therefore, the fourth contention of the learned Senior Counsel for the Third Respondent also deserves to be rejected. 72. Coming to the opposition lodged by the learned Official Liquidator to the present Application, it is true that a Consortium of 8 bankers had lent money to the Company-in-liquidation and that some of them are before the Debts Recovery Tribunal. The dismissal of the Company Petition is not going to have an impact upon those proceedings. If the Banks are Secured Creditors, they will only be happy about the dismissal of the Winding up Petition, since they do not have to associate the Official Liquidator anymore with any coercive steps that they take. If they are unsecured Creditors, their position is not going to become worse by the rejection of the Company Petition. If the Banks are Secured Creditors, they will only be happy about the dismissal of the Winding up Petition, since they do not have to associate the Official Liquidator anymore with any coercive steps that they take. If they are unsecured Creditors, their position is not going to become worse by the rejection of the Company Petition. In so far as the workmen are concerned, what they would get after a Company is wound up, is only a distribution as provided in Section 529-A of the Companies Act. But once the Petition for winding up is rejected, their remedies against the Company are not limited by any such factor. 73. The pendency of Income Tax Assessment need not be a concern for the Official Liquidator. Once the Winding up Petition goes, the provisions of the Income Tax Act, could easily be set in motion, both for recovery as well as for penal action. 74. The last contention of the learned Official Liquidator that by allowing the Application of the Bank, I would be allowing one Creditor bank to score a march over 8 other financial institutions as well as other Creditors, is a contention made too late in the day. Right under the very nose of the Official Liquidator, more than 10,000 depositors, who were all unsecured Creditors, scored a march over banks, financial institutions and other Creditors, by virtue of the orders of this Court. Though, in my view, the poor depositors deserved to be treated specially, in view of the fact that those depositors cannot be treated as lenders or businessmen, the settlement of their claims both inside and outside this Court was allowed to happen not merely out of the sympathy for the depositors. The settlement took place with the clear knowledge that such settlement would save the Third Respondent and his co-directors from successful prosecution in more than 400 Criminal Cases. Therefore, it is too late in the day to contend that the Applicant-Bank would score a march over others, when consciously thousands of unsecured Creditors have been allowed by the orders of this Court to score a march. 75. That leaves me with one last question. As per the report of the Official Liquidator, he has funds to the tune of Rs. 1,27,00,000/- by way of investments and Rs. 3,29,441/- in the Bank. This is as on 1.1.2013. 75. That leaves me with one last question. As per the report of the Official Liquidator, he has funds to the tune of Rs. 1,27,00,000/- by way of investments and Rs. 3,29,441/- in the Bank. This is as on 1.1.2013. If the Company Petition for winding up is rejected, this money has to be transferred by the Official Liquidator to the Company, after deducting all the expenses incurred by the Office of the Official Liquidator. Once the money is returned by the Official Liquidator, it may be open to the Creditors to proceed against the Company and the money so returned. 76. In view of the above, the Application of the IDBI Bank is allowed and the Official Liquidator, appointed as the Provisional Liquidator is discharged. The main Company Petition is dismissed and the Official Liquidator is directed to return to the Company, the amount now lying with him, after deducting all the administrative expenses so far incurred by him. There will be no order as to costs.