Judgment:
A.R. Tiwari, J.
1. The non-applicant (company) in Company Petition No. 4 of 1988 presented by the respondent seeking relief of winding up of the company, has filed this appeal under Section 483 of the Companies Act, 1956, against the order dated September 14, 1990, whereby the application for amendment filed by the respondent, was allowed.
2. Briefly stated, the facts of the case are that the respondent filed the petition before the learned company judge for an order of winding up of the company on the ground of inability of the company to pay the debt due to the respondent. The appellant objected to the tenability of the petition on the alleged ground of its having been filed by a non-existing/ juristic person contending that such a defect was incurable in terms of the Companies (Court) Rules, 1959. The respondent submitted an application for amendment which was allowed with liberty to the appellant-company to apply for consequential amendment.
3. We have heard Shri J.W. Mahajan, learned counsel for the appellant, and Shri Amit Agrawal, learned counsel for the respondent.
4. It emerges from the record that the description of the petitioner (respondent) is not altered. Thus, particulars of the petitioner remain unaltered in the petition pending before the learned company judge andthe question of tenability rests on the linchpin of the under noted averments contained in para. B of the reply submitted by the appellant (who is the respondent in the petition),
'The petitioner in this petition has been described as 'Hiralal Mitthulal'. It is alleged now by way of amendment that the said firm was a proprietorship firm of late Mitthulal, s/o. Hiralal. The said Mitthulal is alleged to have expired in the year 1987, i.e., before the filing of the petition itself.'
5. The law with regard to amendment is liberal. In Haridas Aildas Thadani v. Godrej Rustom Kermani, AIR 1983 SC 319, it is held as under (headnote) :
'The court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. A revisional court also ought not to lightly interfere with a discretion exercised in allowing amendment in the absence of cogent reasons or compelling circumstances.'
6. The prayer of amendment is thus, normally allowed unless serious injustice or irreparable loss is shown to be caused to the other side, It appears from the reply that the objection is still on record. We quote from para. B thus :
'That the amendment cannot be allowed to fill up the lacuna of a very serious nature which goes to the root of the case. The original petition being not maintainable, deserves to be dismissed on this ground alone.'
7. The question of tenability or otherwise of the petition is not answered by the order impugned in this appeal. The order, therefore, cannot be construed as having, validated the invalidity, if any. This aspect can, therefore, be urged before the learned company judge. It goes without saying that when such a contention in the face of a pleading is pressed into service, the same shall be answered by the company court in conformity with law.
8. So far as the present appeal is concerned, we find no ground to make any interference at this interlocutory stage.
9. In the result, this appeal fails and is dismissed, but without any orders as to costs.
10. Record of company petition be returned.