Judgment K.M. Thaker, J. 1. The applicant Bank has preferred summons dated 22.4.2013 seeking below mentioned relief:- "(A) That the Hon'ble Court be pleased to call for the records and proceedings and direct and order that the applicant State Bank of India Overseas Branch, Ahmedabad being a secured creditor be joined as a party respondent in Company petition No. 136 of 2011 as stated in the affidavit in support of this summons and be heard before any further order is passed in the Company petition." 1.1 The applicant Bank has filed affidavit in support of the above quoted relief made in the summons dated 22.4.2013. In the said affidavit in support of the summons, the applicant has averred, inter alia, that:- "3. It is submitted that the account of respondent number 2 Company with the applicant Bank is overdue since 3/12/2011 and as on that day the dues of the applicant Bank have become payable as per the law and necessary guidelines issued by Authorities and has been classified as a non-performing asset. Accordingly the applicant Bank as a secured creditor and a first charge holder on all assets of the respondent No. 2 Company is entitled to first priority in repayment of its dues and accordingly will have priority over all unsecured creditors etc. 4. It is submitted that the present outstanding of the applicant Bank i.e. State Bank of India, Overseas Branch Ahmedabad is Rs. 229.63 Crores which excludes interest costs charges and expenses. If the up to date figure of interest, costs charges and expenses are added from the overdue date i.e. 3/12/11 the amount is likely to go up further substantially as the unapplied interest would also have to be added in accordance with law and practice and also guidelines. It is further submitted that apart from the applicant Bank there are other secured creditors and the total exposure for all secured lenders is about Rs. 2000/- crores excluding interest, cost, charges and expenses. It is further submitted that the total debt of the respondent 2 Company transpires to be around Rs. 3000/- crores." On 1.8.2013, this Court heard Mr. Bhatt, learned Advocate for the applicant, Mr. Desai, learned Advocate for the opponent No. 1, and Mr. Pahwa, learned Advocate for the opponent No. 2, at length as regards the request made by the applicant vide summons dated 22.4.2013. 2. 3000/- crores." On 1.8.2013, this Court heard Mr. Bhatt, learned Advocate for the applicant, Mr. Desai, learned Advocate for the opponent No. 1, and Mr. Pahwa, learned Advocate for the opponent No. 2, at length as regards the request made by the applicant vide summons dated 22.4.2013. 2. What emerges from the summons and the affidavit is the fact that the opponent No. 2 Company owes huge amount-on having failed to repay loans to various Banks and financial institutions, including the opponent No. 1 herein which the Banks and financial institutions have extended by different modes like loan, cash credit facility/over draft, advance against stock, etc. 2.1. One of the creditors (i.e. UCO Bank who is opponent No. 1 in present application and is hereinafter referred to as "petitioner Bank") of the opponent No. 2 Company has filed a petition being Company Petition No. 136 of 2011 (hereinafter referred to as "winding up petition") seeking order that the said Company may be wound up for the reasons mentioned in the said petition. 2.2. In the said winding-up petition, this applicant Bank wants to join as party respondent. 2.3. So far as the said winding-up petition, i.e. Company Petition No. 136 of 2011, is concerned, the petitioner - UCO Bank is dominus litis and as such, it has right and discretion to select opponent and not implead any particular party as opponent so long as any relief is not prayed for against such party and it is not necessary party and Court would not be justified in compelling - by issuing direction to the petitioner to implead present applicant or by allowing applicant's request to join - in the proceedings of Company petition/winding up petition, more so when the Companies Act, 1956 (hereinafter referred to as "the Act") and Company Court Rules, 1959 (hereinafter referred to as "the Rules") provide appropriate and specific as well as effective remedy - by way of Section 439 r.w. Sections 434 and 433 of the Act and/or Rule 34 r.w. Form No. 9 of the Rules. 2.4 After hearing the petitioner of the said petition being Company Petition No. 136 of 2011 and the respondent Company therein, Court passed the order dated 7.3.2012 whereby the said petition has been admitted. 2.5 Ordinarily, order of publication of advertisement/notice about admission of the petition would follow alongwith the order of admission of the petition. 2.4 After hearing the petitioner of the said petition being Company Petition No. 136 of 2011 and the respondent Company therein, Court passed the order dated 7.3.2012 whereby the said petition has been admitted. 2.5 Ordinarily, order of publication of advertisement/notice about admission of the petition would follow alongwith the order of admission of the petition. 2.6 However, only with a view to allowing an opportunity to the respondent Company, i.e. present opponent No. 2, to establish its bona fides and also to demonstrate that it has not lost its paying capacity to discharge its debts and its substratum is not lost or it is not financially weak and unable to discharge its financial obligation and also with a view to allowing chance to the said respondent Company to establish that it has not neglected to pay its dues, the Court considered it appropriate to grant time to the said respondent Company to pay the amount payable to the creditor UCO Bank. Accordingly, time until 27.4.2012, i.e. more than 1 month was granted to the respondent Company - present opponent No. 2. 2.7 Despite the said opportunity, the respondent Company did not make the payment. 2.8 After the said order, the respondent preferred appeal being OJ Appeal No. 24 of 2012 against the above mentioned order dated 7.3.2012 which was, subsequently, withdrawn by the petitioner Company on 9.4.2012 and the Court disposed of the appeal vide order dated 9.4.2012 which reads thus:-- "Learned Senior Counsel Mr. Mihir Thakore assisted by learned Advocate Mr. Navin Pahwa for the appellant states that subsequent developments have taken place which could not be placed before the learned Single Judge. He wants to move the learned Single Judge and therefore he does not press this appeal at this stage. The prayer is accepted. The appeal is dismissed as not pressed with a liberty to the appellant to file appropriate application before the learned Single Judge. Consequently, O.J. Civil Application No. 96 of 2012 does not survive and also stands dismissed with no order as to costs." 2.9 Even after withdrawing the said appeal, the respondent Company, i.e. present opponent No. 2, did not pay or deposit the amount in question. Consequently, O.J. Civil Application No. 96 of 2012 does not survive and also stands dismissed with no order as to costs." 2.9 Even after withdrawing the said appeal, the respondent Company, i.e. present opponent No. 2, did not pay or deposit the amount in question. 2.10 At this stage, it is relevant to refer to and take into account the observations made by the Court in the said order dated 7.3.2012 and also the observations under which the opportunity to pay or deposit the amount in question was granted. The relevant part of the order dated 7.3.2012 reads thus:-- "20. The petition is accepted and admitted. The petitioner is allowed time till 20.4.2012 to place on record resolution of the petitioner Bank to file the petition and authorizing Mr. S.D. Sahare, Chief Manager to file the petition. The respondent is also granted time until 27.4.2012 to deposit the claim amount so as to establish its bona fide and ability and willingness to pay and discharges its financial obligation and pay the debt. For the aforesaid purposes the determination of the date of final hearing of the petition and direction to advertise the admission of the petition and date of hearing is differed. The petition, for the said purpose and further direction shall be listed on a date after four weeks i.e. in the week beginning from 30.04.2012." 2.11 At this stage, it is relevant to note that when the said petition being Company Petition No. 136 of 2011 was pending for admission (i.e. from the date of presentation till 7.3.2012), present applicant Bank had not preferred any application of this nature. 2.12 Similarly, even after the order dated 7.3.2012, present applicant Bank did not prefer application for this or similar relief. 2.13 it is equally relevant to take into consideration that even while the OJ Appeal was pending before the Hon'ble Division Bench, present applicant Bank had not preferred similar application for similar relief before the Hon'ble Division Bench. 3. At this stage, it is necessary to mention the chronology of events after the said order dated 9.4.2012. 3.1 The chronology, in view of this Court, demonstrates that the respondent Company is making all attempts and taking all steps to avoid making repayment of petitioner's dues. 3. At this stage, it is necessary to mention the chronology of events after the said order dated 9.4.2012. 3.1 The chronology, in view of this Court, demonstrates that the respondent Company is making all attempts and taking all steps to avoid making repayment of petitioner's dues. 3.2 The chronology also shows that the respondent Company is taking help of the Banks with whom it is discussing CDR arrangement (which aspect emerged from submission by learned Counsel for respondent Company when he stated that the said Banks - secured creditors - have conveyed that if dues of petitioner Bank are paid then they will not negotiate CDR) and in the process, it is only respondent Company who stands to benefit and is taking advantage of the situation inasmuch as it is not making payment to the secured creditor Banks and/or the petitioner Bank and derives benefit from both sides, enjoying the funds and not repaying the loans (public money). 4. After the OJ Appeal was withdrawn and the petition being Company Petition No. 136 of 2011 was listed for appropriate orders, including the order as regards the petitioner's request to publish the advertisement about admission of the petition, at that stage also, present applicant Bank did not prefer the application seeking the relief, which is prayed for in present application (or any other relief). 4.1 Then, the opponent No. 2 Company preferred application being Company Application No. 115 of 2012. 4.2 The said application was preferred on or around 24.4.2012 and was listed for hearing for the first time on or around 26.4.2012. 4.3 It is pertinent that until then any Bank or financial institution, including present applicant Bank had not preferred any application with and/or for similar relief. 4.4 It was after almost 1 year that present applicant Bank filed this application - Company Application No. 158 of 2013, which appears to have been filed on or around 22.4.2013. 4.5 What is most relevant is the fact that the applicant Bank did not file the application before admission of the petition, but almost one year after admission of the petition. 4.5 What is most relevant is the fact that the applicant Bank did not file the application before admission of the petition, but almost one year after admission of the petition. 4.6 It has also emerged that the application was not circulated immediately and from the record, it appears that the application was probably listed for hearing for first time, on 20.6.2013 when, at the request of learned Advocate for the applicant, hearing was adjourned to 8.7.2013 and on the said date, i.e. on 8.7.2013, again at the request of learned Advocate for the applicant, hearing of the application was adjourned to 1.8.2013. 4.7 In this way, until now, the respondent Company has successfully avoided repayment of loans to all Banks including this applicant Bank and petitioner Bank. 5. By way of this application, the applicant Bank, who is an independent creditor of the opponent No. 2 Company and who claims to be secured creditor of the opponent No. 2 Company and who also claims that the opponent No. 2 Company owes about Rs. 339.63 crores to the applicant Bank and the said amount is overdue since long time, has, now, after such long time prayed that it may be allowed to join proceedings of the petition taken out by another Bank, i.e. UCO Bank (present opponent No. 1), and for that purpose, the applicant Bank has made the above quoted requests in the summons dated 22.4.2013. 6. Before proceeding further, it is relevant to mention, at this stage, that another Bank, viz. Bank of India, who also claims that it is one of the creditors of the present opponent No. 2 Company, preferred application seeking similar relief as the request made by present applicant in this application. The said application preferred by another Bank, i.e. Bank of India, was filed on or around 18.7.2013 and it registered as Company Application No. 404 of 2013. 6.1 After hearing learned Counsel for the applicant Bank, UCO Bank and the opponent Company, this Court has disallowed the said application vide order dated 30.7.2013 for the reasons recorded in the said order. 6.1 After hearing learned Counsel for the applicant Bank, UCO Bank and the opponent Company, this Court has disallowed the said application vide order dated 30.7.2013 for the reasons recorded in the said order. 6.2 As such, the request made in present application also being similar to the request made by Bank of India in its application being Company Application No. 404 of 2013 and since the grounds on which the request is made by both the applicant Banks are also similar, the order dated 30.7.2013 passed in Company Application No. 404 of 2013 would cover the request made by present applicant Bank in this application. 7. The learned Advocate for the applicant Bank made submissions at length to support and justify the request made in present application and during his submissions, learned Advocate for the applicant Bank also relied on various decisions to support and justify the application and the request. The learned Advocate for the applicant has been heard at length. During his submissions, learned Advocate for the applicant Bank submitted that the applicant Bank may be permitted to join the proceedings of Company Petition No. 136 of 2011 because the applicant Bank, according to his submissions, is interested party in the proceedings of said Company Petition No. 136 of 2011 and that the applicant Bank wants to submit to the Court that order of winding up may not be passed/granted. 7.1 Mr. Bhatt, learned Counsel for the applicant, relied on the details in the affidavit in support of the summons and further submitted that the applicant Bank is interested party and therefore, may be permitted to join in the third party's petition. So as to support and justify the request made in present application, learned Counsel for the applicant relied on below mentioned decisions:-- "A. AIR 1983 Supreme Court page 75 (5 Judge Constitution Bench) B. (2012) 8 Supreme Court Cases page 384 (for joining party) C. Re A.B.C. Coupler & engineering co Ltd. - (1961) 1 ALL E.R. D. In Re: P & J MCRAE LTD (1961) 1 W.L.R. 229 E. In Re: HOME REMEDIES Ltd. (Chancery Division) 30 Company cases 126 F. In Re: M/S. Rishi Enterprises Bombay 1991 (2) GLR 1213 G. Focus Advertising P. LTD. v. Ahoora Blocks Private Limited 45 Company cases page 534. v. Ahoora Blocks Private Limited 45 Company cases page 534. H. HY - Line International V/S C & M Hy - Line Farms P. LTD 120(2004) Company cases page 337 I. Edward Textiles Ltd., in Re: B. Mehta and Company 38 Company cases page 284 J. S. Raminder Singh Chawla and others v. M/S. Ego Metal Works P. LTD 1975 TAX Law Reporter page 1559. K. Karnataka Vegetable Oils and Refineries Ltd. v. Madras Industrial Investment Corporation Xltd. AIR 1955 Madras page 582 L. Gwalior Sugar Co. Ltd. v. Shyam Saran Gupta and Co. AIR 1969 Madhya Pradesh page 74." Any other submission is not made by learned Counsel for the applicant Bank. 7.2. I have heard Mr. Bhatt, learned Counsel for the applicant Bank, at length. I have also considered the affidavit in support of the summons as well as other material placed on record. 8. It is not in dispute that the applicant Bank is a creditor of the respondent No. 2 Company. The applicant Bank has claimed that it is a secured creditor. 8.1 It is also not in dispute that one Nationalized Bank viz. UCO Bank has preferred the petition being Company Petition No. 136 of 2011 and prayed for order that the respondent Company may be wound up. 8.2 It is also not in dispute that in the said petition, the Court has already passed order dated 7.3.2012 whereby the said petition has been admitted. 8.3 It is also not in dispute that present applicant Bank did not prefer any application while the said Company Petition No. 136 of 2011 was pending for admission. Even after the order dated 7.3.2012 admitting the petition, the applicant Bank did not prefer any application nor did the applicant Bank prefer any application while OJ Appeal against the order dated 7.3.2012 was before Hon'ble Division Bench. 8.4 It is also not in dispute that present application is preferred by the applicant Bank not only after the admission of the petition but also after the original petitioner withdrew OJ Appeal and almost 1 year after the Company withdrew the OJ Appeal and then preferred Company Application No. 115 of 2012. 8.5 It is also not in dispute that for the reasons recorded in the order, the Court has already disposed of the OJ CA No. 115 of 2012. 8.6 It is also not in dispute that another Nationalized Bank viz. 8.5 It is also not in dispute that for the reasons recorded in the order, the Court has already disposed of the OJ CA No. 115 of 2012. 8.6 It is also not in dispute that another Nationalized Bank viz. Bank of India who claimed to be one of the secured creditors of the respondent Company had also preferred a similar application being OJ CA No. 144 of 2013. 8.7 It is also not in dispute that by order dated 30.7.2013 the Court has decided the said OJ CA No. 144 of 2013 filed by the Bank of India. 9. Since the said other OJ CA No. 404 of 2013 is already decided by the Court and since in the said application the applicant Bank of India had prayed for similar relief, it would be appropriate to take into account the observations made by the Court in the said order dated 30.7.2013 in OJ CA No. 404 of 2013. The relevant part of the order passed in OJ CA No. 404 of 2013 reads thus:-- "4. Now, so far as the request of present applicant Bank in this application is concerned, the application, in view of this Court, does not deserve to be granted for more than one reasons e.g. (1) in a Company petition, under Sections 433 and 434 of the Act, preferred by one creditor in respect of its unpaid dues, other secured creditor can not join as interested party merely because it also has claim against said debtor; (2) such other creditor has remedy in law to prefer separate petition under Sections 433 and 434 of the Act to establish its claim and dues in accordance with law; (3) if such other creditor seeks any other relief, then it can and should take out separate Company application and seek necessary and appropriate relief direction; and (4) the application, in view of the Court which are borne out from the facts and circumstances of the case lacks bona fides. These are some of the reasons for which the application does not deserve to be entertained. On this Court, it is pertinent to mention that this Court, as mentioned above, after prolonged hearing, admitted the Company Petition No. 136 of 2011 vide order dated 7.3.2012. 4.2. At the relevant time, the Court observed in the said order dated 7.3.2012 that:-- "19. On this Court, it is pertinent to mention that this Court, as mentioned above, after prolonged hearing, admitted the Company Petition No. 136 of 2011 vide order dated 7.3.2012. 4.2. At the relevant time, the Court observed in the said order dated 7.3.2012 that:-- "19. Having regard to the said decision and the nature of defects alleged by the respondent Company this Court is of the view that the petition, in view of the foregoing discussion does not deserve to be rejected or dismissed. The petitioner has made out a case for admission of the petition and the Court, as observed above, is satisfied that the defence taken by the respondent lacks bona fides and it has neglected to discharge its financial obligation. Therefore, the Court is inclined to accept and admit this petition. However it appear appropriate, in the facts of the case, to grant opportunity to the petitioner to cure the defects. Therefore this Court is inclined to pass following order. 20. The petition is accepted and admitted. The petitioner is allowed time till 20.4.2012 to place on record resolution of the petitioner Bank to file the petition and authorizing Mr. S.D. Sahare, Chief Manager to file the petition. The respondent is also granted time until 27.4.2012 to deposit the claim amount so as to establish its bona fide and ability and willingness to pay and discharges its financial obligation and pay the debt. For the aforesaid purposes the determination of the date of final hearing of the petition and direction to advertise the admission of the petition and date of hearing is differed. The petition, for the said purpose and further direction shall be listed on a date after four weeks i.e. in the week beginning from 30.04.2012." 5. As can be seen from the above quoted part of the order dated 7.3.2012, the Court recorded its finding that the defence of the respondent Company lack bona fides and the Court also recorded that the respondent Company has neglected to discharge its financial obligations. However, time was granted to the respondent Company to deposit the claim amount to establish its bona fides and ability and willingness to pay and discharge financial obligation. Despite the said opportunity, Company did not pay the amount. However, time was granted to the respondent Company to deposit the claim amount to establish its bona fides and ability and willingness to pay and discharge financial obligation. Despite the said opportunity, Company did not pay the amount. It is apparent that the Company does not want to and does not intend to and is not able to pay the dues which in fact are public money. 5.2............Therefore, the excuse that until now the applicant Bank was not aware about the proceedings and only now it came to know about the proceedings, is not available to the applicant Bank and therefore, it is rightly not raised before this Court by Bank of India. Otherwise, it would apparently appear and sound to be a baseless and unjustified excuse. 6. In view of the fact that the applicant Bank has preferred present application at eleventh hour and that it has preferred the application despite being aware about the procedure in Company petitions seeking order of winding up, gives a reason to the Court to believe that the applicant Bank has preferred application for different and undisclosed reasons, i.e. for reasons other than those mentioned in the application. The fact that throughout the intervening period the applicant Bank never considered it necessary to prefer such application and suddenly at eleventh hour when the Court was hearing the parties, i.e. the petitioner UCO Bank and the respondent Company, as regards the petitioner UCO Bank's request to permit it to publish the advertisement and the respondent Company's request to vacate the order and the Court was to start the order in the petition and the application No. 115 of 2012 that the applicant Bank preferred present application which does not leave much to imagination. The said application, and the point of time at which it came to be preferred, speak for itself. 7................. 8. Moreover, if the applicant Bank needs to make any request to the Company Court as regards further proceedings and/or as regards orders in the petition under Section 433 r.w. Section 434 of the Act against the Company wherein the applicant Bank is one of the secured creditors, then such Bank can come out with appropriate independent application seeking appropriate orders or directions or relief. The Court is alive to the fact and legal position that it is open to a secured creditor to submit to the Court that order of winding up may not be passed against the Company for the reasons urged by such secured creditors, the Court can also appreciate and understand that the secured creditors may jointly or severally come to the Court and submit that the respondent Company may be granted chance for revival because the secured creditors are making efforts for revival of the Company, the Court is also conscious of and alive to the fact that in any case, revival or survival of the Company is better than winding up of a Company however, for all such purpose, the secured creditor has to come with appropriate separate and independent application with necessary details containing offer and suggestions for helping the revival or survival of the Company but the secured creditor is not entitled to make an application seeking leave to join in the proceedings of a pending Company petition preferred by the another creditors, more particularly when such secured creditors have right to appear in the proceedings of Company petition after the Official Liquidator invites claims/application or by way of separate applications, as mentioned above." 9.1 Before proceeding further, it would also be relevant and appropriate to refer to some of the observations in the order dated 29.7.2013 passed in OJCA No. 115 of 2013 which was preferred by the respondent Company. The relevant part of the order passed in OJ CA No. 115 of 2013 reads thus:-- "2........... 2.1 Ultimately, after several adjournments (at the request of respondent for time to resolve dispute) and after prolonged hearing and upon hearing learned Counsel for the petitioner and respondent at length, the Court passed order dated 7.3.2012. By the said order the petition came to be admitted. 2.3 However, with a view to granting time to the respondent to make the payment or deposit the amount, time until 27.4.2012 i.e. for more than one month (from 7.3.2012 to 27.4.2012) was granted and the petition was to be listed for further order/hearing on 30.4.2012. 6........... 6.1 It is submitted that since more than two years the respondent Company i.e. present applicant has not paid any amount towards the loan/advance facility received by it from the petitioner UCO Bank and public money of more than Rs. 6........... 6.1 It is submitted that since more than two years the respondent Company i.e. present applicant has not paid any amount towards the loan/advance facility received by it from the petitioner UCO Bank and public money of more than Rs. 50 Crores have been held-up and are not being repaid by the applicant. 6.3 It is submitted that the Court had granted time to make payment however instead of making payment, the applicant i.e. original respondent is only consuming time and is delaying further proceeding of the main petition." 10. Before proceeding further and before dealing with the decision on which the learned Counsel for the applicant relied, it is relevant to take into consideration Section 439 of the Act which reads thus:-- "439. Provisions as to applications for winding up.--(1) An application to the Court for the winding up of a Company shall be by petition presented, subject to the provisions of this Section,- (a) by the Company; or (b) by any creditor or creditors, including any contingent or prospective creditor or creditors; or (c) by any contributory or contributories; or (d) by all or any of the parties specified in clauses (a), (b) and (c), whether together or separately; or (e) by the Registrar; or (f) in a case falling under Section 243, by any person authorised by the Central Government in that behalf. (2).......... (3) A contributory shall be entitled to present a petition for winding up a Company, notwithstanding that he may be the holder of fully paid- up shares, or that the Company may have no assets at all, or may have, no surplus assets left for distribution among the share- holders after the satisfaction of its liabilities. (4) A contributory shall not be entitled to present a petition for winding up a Company unless- (a).......... (b).......... (5) Except in the case........ (6) The Central Government shall not accord its sanction in pursuance of the foregoing proviso, unless the Company has first been afforded an opportunity of making its representations, if any. (7) A petition for winding up a Company on the ground specified in clause (b) of Section 433 shall not be presented- (a) except by the Registrar or by a contributory; or (b) before the expiration of fourteen days after the last day on which the statutory meeting referred to in clause (b) aforesaid ought to have been held. (7) A petition for winding up a Company on the ground specified in clause (b) of Section 433 shall not be presented- (a) except by the Registrar or by a contributory; or (b) before the expiration of fourteen days after the last day on which the statutory meeting referred to in clause (b) aforesaid ought to have been held. (8)..........." 10.1 Thus, according to the said provision a creditor has substantive right to take out the winding up petition. Rule - 11(a)(15) of the Rules provides that application under Section 439 can be by way of petition whereas Rule 11(b) provides all other applications shall be by Judge's Summons. 10.2 Neither the Act nor the Rules provide for, nor do they contemplate, any eventuality where a person or a Company or a creditor or a contributory can seek "to join as party respondent" in a winding-up petition preferred by third party i.e. by a person entitled to take out petition under Section 439 of the Act. 10.3 However, what is more relevant and important- so far as this application and the request of the applicant or purpose and object of the applicant is concerned - is the fact that the Rules contain specific provision - which, inter alia prescribes the procedure - for all those persons who want to support or oppose a winding up petition preferred by another person i.e. another creditor or contributory competent to do so under Section 439 of the Act. 11. In this context, it is relevant to make reference of Rule 34 of the Rules which read thus:-- "Notice to be given by persons intending to appear at the hearing of petition. 33. Every person, who intends to appear at the hearing of a petition, whether to support or oppose the petition, shall serve on the petitioner or his Advocate, notice of his intention at the address given in the advertisement. The notice shall contain the address of such person, and be signed by him or his Advocate, and save as otherwise provided by these Rules shall be served (or if sent by post, shall be posted in such time as to reach the addressee) not later than two days previous to the day of hearing, and in the case of a petition for winding-up not later than five days previous to the day of hearing. Such notice shall be in Form No. 9, with such variations as the circumstances may require, and where such person intends to oppose the petition, the grounds of his opposition, or a copy of his affidavit, if any, shall be furnished along with the notice. Any person who has failed to comply with this rule shall not, except with the leave of the Judge, be allowed to appear at the hearing of the petition." (emphasis supplied) 11.1 It can be seen from plain reading of said provision that it expressly enables "every person" who "intends to appear" at the hearing of a petition (in present case the Company Petition No. 136 of 2011) whether to "support OR to oppose" the petition has to (i.e. he is obliged to) serve notice of "his intention" to the petitioner. 11.2 The said Rule 34 also prescribes the contents of the Notice which are necessary and compulsory for such "Notice" viz. address of such person (i.e. who intends to support or oppose the petition) and such "Notice" shall be served to the petitioner or his Advocate atleast five days (as the case may be) before the date of proposed hearing. 11.3 Another important requirement in respect of the said Notice is that the "intention" of the person (i.e. it/he intends to support the petition or intends to oppose the petition) should be mentioned in the Notice. 11.4 Third important requirement/condition elated to and applicable to such "Notice" is that it should be in prescribed form i.e. "Form No. 9" which reads thus:-- "FORM No. 9 [See rule 34] [HEADING AS IN FORM No. 1] Company Petition No. ..........of 20..... Notice of intention to appearance To ................................................. ................................................. Take notice that A.B., intends to appear at the hearing of the petition advertised to be heard on the..............day of..............20......, and to oppose (or support) such petition. Name (sd.)............................ ............................ Address [Note : Grounds of objection or copy of the affidavit, if any, should be served with the notice]." (emphasis supplied) 11.5 Thus, even the Form of "such Notice" is prescribed under the Rules. Name (sd.)............................ ............................ Address [Note : Grounds of objection or copy of the affidavit, if any, should be served with the notice]." (emphasis supplied) 11.5 Thus, even the Form of "such Notice" is prescribed under the Rules. When there is, "(a) express provision for the purpose of supporting or opposing a petition; and when (b) intention to oppose (or support) the petition is required to be disclosed and to be conveyed to the petitioner; and when (c) specific procedure is prescribed for the said purpose; and when (d) it is compulsory to give "prescribed Notice" to the petitioner; and when (e) such "Notice" has to be served in prescribed form (though with such variations as may be necessary); and when (f) minimum notice - time is also prescribed under the Rules, then the Court can not overlook or ignore the said provision and the requirement and cannot permit any person (who wants to oppose or support the petition) any short-cut to circumvent the prescribed procedure or the Court cannot permit any other procedure to such person and such person must follow the prescribed procedure more so when the Act and/or the Rules do not provide for or contemplate eventuality of someone joining as party respondent in 3rd party's petition and when the Act or the Rules do not confer any power, Authority and jurisdiction on the Company Court to give go-bye to the prescribed procedure and accord any special privilege or exemption to any person." 11.6 From the Scheme of the Act and the Rules, it emerges that so as to take care of the specific and separate provision under the Act providing remedy to a secured creditor or group of secured creditors or majority of secured creditors who want to oppose or support the winding-up petition filed by a third party (i.e. other secured or unsecured creditor), the provision in form of Rule 34 is made and Form No. 9 is prescribed whereby the "Notice of Intention" can be given. 11.7 When such specific provision is made and procedure is also prescribed, then it can be allowed to be diluted or given a go-bye and another short-cut cannot be permitted by the Court. 11.8 It is in this view of the matter that the Court is not inclined to entertain and would not be justified in entertaining present application. 11.9 This is one main reason for present order. 12. 11.8 It is in this view of the matter that the Court is not inclined to entertain and would not be justified in entertaining present application. 11.9 This is one main reason for present order. 12. The Court cannot resist to mention that in view of the Scheme of the Act and the Rules the Court, during the hearing, asked the learned Advocate for the applicant whether the applicant would want to follow the procedure under Rule 34 r.w. Form 9 and take out appropriate notice/summons instead of pursuing the application seeking leave to join (as party respondent) in 3rd party's petition, however, learned Counsel informed the Court that the applicant wants to continue to pursue this application and submitted that appropriate order on this application may be passed. Hence, Court has heard learned Counsel at length and has proceeded to make this order. 13. So far as the various decisions relied on by learned Counsel for the applicant Bank are concerned, it is observed that a secured creditor can come before the Court and oppose the petition and/or seek appropriate order and request the Court not to pass order of winding up against the Company to defer the proceedings. It is true that the said position is binding to this Court. 13.1 However, in present case, the question is about the procedure to be followed when a person wants/intends to oppose (or support) a winding-up petition and when specific procedure for such purpose is prescribed then the person seeking to support or oppose the petition must follow such procedure and Court cannot permit any other procedure. 14. When something is required to be done in particular manner, then, it must be done in that particular manner only and not in any other manner. Thus, when procedure is prescribed for issuing and serving "Notice of intention" for the secured creditor or other creditor or contributory or "any person" who wants to oppose or support winding-up petition, then, any other short-cut or procedure cannot be allowed. Moreover, since the right to seek order of winding-up against a debtor is a right created by the statute, it has to be exercised and can be allowed to be exercised and must be carried out and implemented/enforced only in the manner prescribed by the Act and the Rules. 15. Moreover, since the right to seek order of winding-up against a debtor is a right created by the statute, it has to be exercised and can be allowed to be exercised and must be carried out and implemented/enforced only in the manner prescribed by the Act and the Rules. 15. In present case, the applicant who wants to oppose the petition has not followed the procedure prescribed under Rule 34 and Form 9 and has not taken out its own separate, proper and independent Notice/application declaring its intention and seeking appropriate order, but the applicant insists to join, as a party respondent in a winding up petition taken out by the 3rd party wherein petitioner has not prayed for any relief against the applicant. 16. It is in the above mentioned background of the facts of the petition being Company Petition No. 136 of 2011 and in light of the object and facts and scope of this application that the decisions relied on by the learned Counsel for the petitioner are required to be considered. 17. In the decision in case between National Textile Workers' Union Etc. v. P.R. Ramakrishnan & Ors. (supra), the Hon'ble Apex Court was considering the claim of the workers that they are entitled to appear at the time of hearing of the petition either to support or to oppose the petition. The Hon'ble Apex Court considered the said claim and request of the workers in light of the fact that in view of the provisions under the Act and in light of the decision by the Hon'ble Court, the workers are not entitled to prefer Company petition seeking winding up order. In view of such facts, the Hon'ble Apex Court observed and held (per majority) in the said decision that:-- "11. We are therefore of the view that the workers are entitled to appear at the hearing of the winding up petition whether to support or to oppose it so long as no winding order is made by the Court. In view of such facts, the Hon'ble Apex Court observed and held (per majority) in the said decision that:-- "11. We are therefore of the view that the workers are entitled to appear at the hearing of the winding up petition whether to support or to oppose it so long as no winding order is made by the Court. The workers have a locus to appear and be heard in the winding up petition both before the winding up petition is admitted and an order for advertisement is made as also after the admission and advertisement of the winding up petition until an order is made for winding up the Company......" The said view is expressed in light of the position under the Act and it is explained by Apex Court - "7.......It is no doubt true that this Section confers the right to present a winding up petition only on certain specifically enumerated persons and the workers are not included in that enumeration and therefore obviously, the workers have no right to prefer a petition for winding up of a Company. The right to apply for winding up of a Company being a creature of statute, no one other than those on whom the right to present a winding up petition is conferred by the statute can make an application for winding up a Company and no such right having been conferred on the workers, they cannot prefer a winding up petition against a Company....." So far as the applicant Bank is concerned, the applicant Bank has both rights available to it, i.e. to prefer substantive petition, as a creditor and seek winding-up of a Company or to oppose the petition (i.e. to take out separate Judge's Summons/Notice, with their submission to not pass order of winding up or to defer the proceedings or to make any appropriate request in accordance with the provisions under the Act and that therefore, the above mentioned decision does not assist the case of the applicant Bank in present case. 17.1 So far as the decision in the case between Vidur Impex And Traders Private Limited & Ors. v. Tosh Apartments Private Limited & Ors. 17.1 So far as the decision in the case between Vidur Impex And Traders Private Limited & Ors. v. Tosh Apartments Private Limited & Ors. [ (2012) 8 SCC 384 ] is concerned, in the said decision, the Hon'ble Apex Court was considering the case wherein the application before the learned trial Court was made by purchaser of the suit property and the provisions under Order-1 Rule-9 and Rule-10 were under consideration. In the said case, the Hon'ble Apex Court found that sale deeds were executed in clandestine manner and also in violation of order passed by High Court and the transfer of property was made pendente lite. The facts of the said case are different from the facts involved in present case and therefore, the said decision does not render assistance to the applicant, more particularly in view of the fact that the provisions under the Act as well the Rules provide for a separate and specific remedy and prescribes particular proceeding under which, the applicant has right in law to take out appropriate Notice/application. The Rules prescribe procedure for taking out Notice and thereby a separate and substantive application seeking necessary and appropriate directions. However, learned Counsel for the applicant has failed to show any provision under the Act or the Rules to prefer application for joining party in a Company petition preferred by another creditor. 17.2 In the decision in the case between A.B.C. Coupler & Engineering Co. Ltd. [[1961 1 AER 354], the issue as to whether a creditor can take out and maintain application to join - as party respondent - proceeding of winding up petition preferred by another creditor (and that too by circumventing the provision under the Rules) was not under consideration. In the said decision it is observed that wishes of the majority of the creditors ought to be taken into consideration by the Court while considering petition seeking order of winding up. In the said decision, it is clarified that the wishes of the majority creditors possess great weight and if they are reasonable, the Court would follow them in absence of special circumstances but they i.e. wishes of other creditors are not conclusive. In the said decision, it is clarified that the wishes of the majority creditors possess great weight and if they are reasonable, the Court would follow them in absence of special circumstances but they i.e. wishes of other creditors are not conclusive. So far as present applicant Bank is concerned, the applicant Bank may, in accordance with the provisions under the Act and the Rules, take out appropriate proceedings Notice in form 9 r.w. Rule 34 and oppose or support the petition and seek such direction or clarification or order, as may be necessary and just and proper in the facts of the case. However, in absence of any provision conferring jurisdiction to the Court to allow 3rd party's application in a petition preferred by another creditor such request made by present applicant cannot be considered more so when the prescribed procedure for such purpose is not followed. In the facts of the case, the said decision does not help the applicant's case. Before proceeding further, it is appropriate to recall and mention that at the time of hearing, it was informed to the learned Counsel for the applicant Bank that the applicant Bank has right in law in view of the provisions under the Act and the Rules to take out appropriate separate Notice of intention declaring its intention to support/oppose the petition and if it so desires, it may do so and if such Notice/application is filed, it will be considered in accordance with law and in light of the provisions of the Rules and facts of the case, but the application by the creditor to join as party respondent in a petition preferred by another creditor do not deserve to be considered or maintained in absence of any provision under the Act, however, the learned Counsel for the applicant preferred to pursue this application. 17.3 So far as the decision in the case between In Re P. & J. Macrae Ltd. [(1961) 31 CC 424] is concerned, in the said decision also it is observed that opinion of the majority creditors is relevant consideration for the Court while considering winding up petition because views of the secured creditor helps the Court in exercising the discretion. In the said decision it is observed:-- "...I have no doubt that where a majority of creditors do for good reason oppose a petition for the winding up of a Company, then, prima facie, they are entitled reasonably to expect that their wishes will prevail, in the absence of proof by the petitioning creditor of special circumstances rendering a winding-up order desirable in spite of their opposition. But I am certainly not prepared to accept the view that the bare fact of the opposing creditors being in a majority is of itself sufficient, still less conclusive." 17.4 Similarly in case of in the decision in case of Focus Advertising Private Ltd. v. Ahoora Blocks Private Ltd. [(1975) 45 CC 534], it is observed that while considering the petition seeking order of winding up against the petition, wishes of other creditors are relevant consideration. The said decision does not address the issue involved in the matter and Home Remedies Ltd. [(1943) 13 CC 126], it is observed that the rule that the Court should have regard not only to the petitioner's wishes but to the wishes of all creditors, shall prevail. In the facts of the case and for the reasons similar to the reasons discussed earlier, the said decision also not help petitioner's case. In the said decisions issue about claim/demand to join - as party respondent - in 3rd party's winding - up petition and/or about Rule 34 or similar provision was not under consideration. Besides this, so far as locus to be heard so as to put forward the objection (or support) is concerned, that is always available to the applicant and appropriate separate and independent Notice/application can be taken out. 17.5 The other decision relied on by the learned Counsel for the applicant is the decision in the case between in Re. M/S. Rishi Enterprises, Bombay [ (1991) 2 GLR 1213 ] wherein it is observed that it is not obligatory for the Court to admit the winding up petition if the undisputed amount is not paid and the Court would welcome revival of the petition rather than affirm its death. In the said decision, the issue as to whether the creditor can prefer application for being joined as party respondent - opponent in a petition preferred by another creditor or not, is not considered. In the said decision, the issue as to whether the creditor can prefer application for being joined as party respondent - opponent in a petition preferred by another creditor or not, is not considered. 17.6 In the decision in the case of Karnatak Vegetable Oils & Refineries Ltd. v. Madras Industrial Investment Corporation Ltd. & Anr. [AIR 1955 MADRAS 582], and in the decision in the case Re: A. B.C. Coupler & Engineering it is observed that the Court may refuse to make a winding up order having regard to the wishes of the majority of creditors. In the said decision also the issue under consideration was not the issue which is on hand in present case. 17.7 In the decision in case of Hy-Line International v. C & M Farming Ltd. [2004 (120) CC 337], application seeking permission to intervene in the proceedings of winding up petition was filed and the respondents had opposed the said application on the ground that the applicant had no locus to intervene in the Company petition and it was contended that if at all the applicant were to be heard, they would be heard at the stage of final hearing. The Court, in that context, observed, referring to another decision by Punjab & Haryana High Court, that the Court has discretion to allow interested persons to participate in the proceedings to oppose the admission of the petition. However, in present case, it is pertinent to mention that the applicant has preferred application not only after the petition came to be admitted vide order dated 7.3.2012, but even much after (almost 1 year after) the extended period of 1 month which was allowed by the Court to the respondent Company to pay amount in question, expired. It would be appropriate to recall, in this context, that the petition came to be admitted vide order dated 7.3.2012 and the respondent was granted time to pay the petitioner, the amount in question, and for that purpose, the order permitting/directing the petitioner to publish notice of admission of petition was deferred until 24.4.2012. During the entire period, the applicant did not prefer any application much less any specific application to intervene in the proceedings. Even at the stage of OJ Appeal, the applicant did not prefer any application before the Hon'ble Division Bench. During the entire period, the applicant did not prefer any application much less any specific application to intervene in the proceedings. Even at the stage of OJ Appeal, the applicant did not prefer any application before the Hon'ble Division Bench. After the appeal came to be withdrawn and the petition was to be considered further, at that stage also, present applicant did not prefer any application and, at eleventh hour, the applicant has come out with present application. Besides the said distinguishing feature, which not only brings out inordinate delay on the part of the applicant, the application is also distinguished from the application in the cited case, inasmuch as the applicant has neither taken out "Notice of intention" to support or oppose the petition nor has the applicant preferred application to intervene in the matter, but has preferred the application seeking that it may be joined as party respondent in the petition filed by 3rd party and has not even followed the procedure prescribed under the Rules. Moreover, for unexplained reasons, the applicant does not want to follow the procedure prescribed under the Rules i.e. Rule-34 r.w. Form 9. If the applicant wants to oppose (or support) the Company petition, then, appropriate application in accordance with Rule-34 is required to be presented to the Court in the manner prescribed by the said Rule. In the cited case, the issue with reference to and in light of Rule-34 r.w. Form 9 did not arise for consideration by the Hon'ble High Court. Thus, in the facts of present case, the said decision would not help present applicant. 17.8 So far as the decision in case of Gwalior Sugar Co. Ltd. Dabra v. Shyam Saran Gupta & Co., Kanpur (supra) is concerned, in the said decision, the issue with reference to the words "other persons" was under consideration before the Court in light of the objection raised against the application preferred by person not covered within purview of Section 349. The Court, in the said decision, observed that since the words "other persons" are not clarified or restricted by the words "specified in Section 439(1)" even persons not within purview of Section 439 can prefer an application. In present case, the issue whether the applicant Bank can prefer an application or not is not the issue under consideration. The Court, in the said decision, observed that since the words "other persons" are not clarified or restricted by the words "specified in Section 439(1)" even persons not within purview of Section 439 can prefer an application. In present case, the issue whether the applicant Bank can prefer an application or not is not the issue under consideration. The point on hand is that whether the applicant Bank can, despite specific provisions under the Rules and in absence of any provision contemplating application for joining as party respondent in 3rd party's petition under Section 434 r.w. Section 439, prefer application seeking permission to join the winding up petition preferred by 3rd party. The said issue was not under consideration in the said decision and therefore, the said decision does not help the case of present applicant. 17.9 In the decision in case of Edward Textiles Ltd. (supra), the Court considered the issue whether union of workers has any locus to oppose winding up petition and observed that though the workers and the Company, as individuals, may oppose the petition, union has no locus to oppose the winding up petition and that though statutory ground contemplated under Section 434 is made out, in given case it may not be necessary to admit the petition. In view of the difference in the set of facts and in the issue under consideration, the said decision also would not help the case of applicant in present case. 18. In view of the foregoing discussions and for the above mentioned reasons, as well as in light of the aspects mentioned below, this application does not deserve to be and cannot be granted. 19. As mentioned earlier, in present case, the applicant has not taken out notice/application in accordance with Rule 34 r.w. Form 9 of the Rules. The applicant Bank has taken out present application (to join - as party respondent - winding-up petition preferred by 3rd party i.e. another Nationalized Bank whose dues (repayment of loan given by the said petitioner Bank) to the tune of about Rs. 50 crores have not been paid by the respondent Company, long time after the petition came to be admitted and long time after even the extended time granted by the Court for paying the amount, expired. 50 crores have not been paid by the respondent Company, long time after the petition came to be admitted and long time after even the extended time granted by the Court for paying the amount, expired. 19.1 Furthermore, the applicant Bank has not followed the procedure prescribed under Rule 34 which prescribes that "any person" who wants to oppose or support, winding up petition, must take out and serve notice on the petitioner or his Advocate and the notice must express the intention to oppose or support the winding up petition. The Rules also prescribe the Form i.e. Form 9 in which the notice should be taken out. As mentioned earlier, the provisions under the Act do not provide for or do not contemplate any right in favour of the secured creditor to join as a party respondent in a winding up petition (i.e. a petition filed by invoking provisions under Section 434 r.w. Section 433 and Section 439 of the Act), by another secured creditor or unsecured creditors. If a creditor desires to have an order of admission of winding up petition for its unpaid dues, then the Act has conferred specific right on such creditor, under Section 439 r.w. Section 434 and Section 433 of the Act, and such creditor can prefer a winding up petition and seek appropriate orders, however, any specific provision allowing another creditor to join, as party respondent the proceedings of 3rd party's winding-up petition is not available in the Act. Any provision conferring power and Authority-jurisdiction on the Company Court to join implead (or to allow any applicant to join) any other party (i.e. the party not impleaded as petitioner or respondent by petitioner creditor) to join proceedings of winding up petition filed by third party (i.e. other creditor against the debtor Company) is also not available under the Act. The Act does not confer, on the Company Court, Authority or jurisdiction similar to the Authority or jurisdiction conferred on Civil Court by Order 1 Rule 10(2) of the Code of Civil Procedure. The Act does not confer, on the Company Court, Authority or jurisdiction similar to the Authority or jurisdiction conferred on Civil Court by Order 1 Rule 10(2) of the Code of Civil Procedure. So as to take care of the situation, which arises on account of absence of any provision allowing a creditor to join the proceedings of a winding up petition taken out by other creditor or contributory, and/or provision conferring Authority on Company Court to allow or direct impleadment of any interested party to join proceedings taken out by a creditor under Section434 of the Act, appropriate provision is made, by way of Rule 34 under the Rules which provides a remedy to the creditor to take out appropriate notice declaring its intention that it wants to support or oppose any winding up petition preferred by other creditor. In this context, the provision under Rule 34 as mentioned earlier, is relevant. Thus, the Rules take care of the situation and provide a remedy to a creditor to support or oppose petition by other creditor and that therefore, a creditor would not be justified in claiming and insisting that it should be joined as party in application filed by someone else, i.e. by some other creditor and in absence of any provision conferring Authority on the Company Court to add/join other party as co-petitioner or party respondent in winding-up petition, it would not be just and proper and permissible for the Court to grant this application, more so because the applicant Bank is not without remedy - rather there is specific provision and procedure prescribed under the Rules. A creditor or a group of creditors and in some cases majority of creditors, may have some reasons and justifications to request the Court to grant or to not grant order of winding up against a debtor Company and such request can be made by other creditors before order of admission of a petition is passed and even after the order of admitting the petition is passed and even when the process of winding up is in progress. As observed in catena of decisions by Apex Court and other decisions as well, though the wish of other secured creditors/even majority of creditors does not have conclusive or binding effect and the Court is not legally bound to accept the view or wish or request of a secured creditor or a group of secured creditors or even majority of the secured creditors, however, the Court would consider the reasons and justifications urged by the creditors and the Court would take such reasons and justifications into account while deciding as to whether order of winding up should be granted or not but for putting forward such request, the creditor or group of creditors or majority of creditors will have to approach the Court in the manner prescribed under Rule 34 of the Rules. The said provision is made so that appropriate application containing reasons and justifications supporting or opposing the Company petition, can be submitted to the Court. In present case, the applicant Bank did not file any application before the Court passed the order of admission. Instead the applicant Bank filed present application after long delay since the date of order admitting the petition came to be passed. The application is opposed by the Bank who is the dominus litis and it has opposed the application. For the said reason also, the application seeking permission to join the proceedings of 3rd party's winding up petition, cannot be granted. Moreover, when specific provision is made under the Rules and such provision also prescribes certain procedure, then, such provision and the prescribed procedure must be followed cannot be given a go-bye by the Court. If present application is granted, it would amount to circumventing the provision under Rule 34 and that therefore also, the application does not deserve to be granted. If present application is granted, it would amount to circumventing the provision under Rule 34 and that therefore also, the application does not deserve to be granted. When there is a specific provision under Rule 34 and when the said provision prescribes certain requirements, then, the applicant Bank cannot insist, that it should be joined as party respondent in Company petition preferred by another creditor, more so when the applicant Bank has right to, (a) prefer its own independent petition for its claim (Sections 433, 434 r.w. Section 439); (b) prefer a separate-substantive Notice/application to oppose (or support) the petition (Rule 34 r.w. Form 9); (c) can prefer its own separate and independent and substantive application and can seek appropriate relief - direction to not make final order of winding-up or to stay the proceedings temporarily or permanently; then the relief for which the application is taken out cannot be granted in a petition preferred by some one else, i.e. a third party. In view of the provisions under the Act and the Rules, it is always open to the applicant Bank to take out appropriate separate Notice/application in accordance with Act and Rules and seek appropriate order. 20. For the foregoing reasons, the Court is not inclined to grant the request -application. Accordingly, in view of the aforesaid observations, present application is not accepted and the same is disallowed, however, with clarification that it would be open to the applicant to take out appropriate separate Notice declaring its intention, and follow the procedure prescribed by the Rules and seeking appropriate orders. Application Dismissed.