Bilal Nazki

1. Heard learned counsel for the parties.

2. The company petition filed by the appellant in Company Petition No. 120 of 2000 (Ahmedabad Electricity Co. Ltd. v. SanghiSpinners (India) Ltd. [2007] 140 Comp. Cas. 161 (AP)), seeking winding up of the respondent-company was dismissed by the learned company judge. Aggrieved by the same, the present appeal has been preferred. The main ground on which the company petition has been dismissed by the learned company judge is that the appellant was not an authorised person to represent the company and that he had also not filed any material to substantiate that he was authorised by the company to file the company petition and give evidence in the matter.

3. The order of the learned company judge is assailed in this appeal mainly on the ground that the respondent in the company petition had not raised a plea that the appellant was not an authorised person to file the company petition, as such he could not produce the relevant material. It was only in cross-examination of the appellant, before the company court, that certain questions were put to him with regard to his capability to file the company petition.

4. Learned counsel appearing for the appellant submits that since the appellant was a company secretary and in terms of rule 21 of the Companies (Court) Rules, 1959, without even having an authority from the company, he was authorised to file pleadings and give evidence.

5. We have found that the respondent had not taken any objection in his counter, before the company court, with regard to the capacity and capability of the appellant to file the company petition, to pursue the company petition or to give evidence in the company petition, therefore, the appellant had been taken by surprise when this objection was considered and the company petition was dismissed as not maintainable holding that he was not authorised to file the same. For this reason only, we set aside the order impugned and remand the case to the company court. The appellant is permitted to place on record all the material, he wants to, for substantiating that he was an authorised representative of the company to file the company petition. The company court may pass appropriate orders after hearing both sides.

6. The appeal is accordingly allowed. No order as to costs.