The requirement to advertise a petition for winding up does not flow out of the statute but flows out of the Rules and since the requirement to advertise a petition for winding up is stipulated in Rr. 5 and 7 of the Companies (Winding up) Rules what is prescribed in R. 35 of the NCLT Rules, 2016 would cover even petitions for winding up. Held, there   are   no stakeholders who are prejudiced by the failure of NCLT to order the publication of advertisement of the petition. Though technically the Tribunal may not be correct in invoking “useless formality theory” in cases of this nature, we can certainly apply the test of prejudice, especially in the light of the serious nature of the allegations of fraud, on the basis of which the company is sought to be wound up. This is not a case where the company is sought to be wound up on the ground of inability to pay debts or on just and equitable ground. This is a case of fraud and all stakeholders are fully aware of the proceedings and they have even shown extreme urgency in enforcing an ICC Arbitration award and 2 BIT awards, before the conclusion of the winding up proceedings. Therefore, we are unable to sustain the argument that the failure of the Tribunal to order the publication of an advertisement rendered the entire proceedings unlawful. Further we cannot hold that merely because something is mentioned in the preamble of Form WIN­11, it becomes mandatory. Therefore, in fine, we find all the grounds of attack to the concurrent orders of the NCLT and NCLAT to be unsustainable

[Devas Multimedia (P) Ltd. v. Antrix Corpn. Ltd., (2023) 1 SCC 216]

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