2008 (1) TMI 614 - HC - Companies Law

Winding up whether the appellant/applicant was given sufficient time to cause their appearance before this court but she did not cause her appearance on the date of hearing? - Held that - The appellant/applicant has not received the registered notice as seen from the acknowledgment card filed into the court as proof of service we are inclined to interfere with the order of the learned single judge passed in C. A. No. 510 of 1999 in C P. No. 88 of 1989 dated July 16 2001 in refusing to set aside the decree passed on June 14 1997 in C. A. No. 1494 of 1993 and set aside the order passed in C. A. No. 510 of 1999 dated July 16 2001 to promote substantial cause of justice and with this observation O. S. A. No. 263 of 2002 stands disposed of. Without expressing our opinion on the merits of the case we remit the matter back to the learned single judge and liberty is given to both parties to adduce oral and documentary evidence to prove the claim in C. A. No. 510 of 1999 in the manner known to law. Considering the facts and circumstances of the case the parties are directed to bear their own costs.

Summary

Issues:
Challenge to decree based on service of notice and acknowledgment card.

Analysis:
The appellant filed an application seeking relief to set aside a decree passed against her for a sum of Rs. 13,640 with future interest. The learned single judge dismissed the application, concluding that the official liquidator had served notice to the appellant. The appellant argued that she was a minor at the time of the alleged promissory note and pointed out disparities in signatures. The respondent official liquidator contended that despite notice, the appellant failed to appear. The court noted the principle that denial of service shifts the burden of proof. It emphasized the legal definition of a "claim" under Section 446(2) of the Companies Act, indicating it must be legally enforceable. The court also highlighted the importance of valid service before recording a finding. The respondent claimed to have issued a demand notice to the appellant, who denied the claim in a legal notice, stating she was a minor at the time of investment.

The court examined the acknowledgment card and found disparities in the address and signature, leading to the conclusion that the appellant did not receive the registered notice. Consequently, the court set aside the order refusing to annul the decree and remitted the matter back to the learned single judge for further proceedings. The parties were given liberty to present evidence to prove the claim, and each party was directed to bear their own costs.

This judgment primarily revolves around the issue of service of notice and acknowledgment card in the context of challenging a decree. The court emphasized the burden of proof, legal definitions, and the importance of valid service before concluding that the appellant had not received the notice. The decision to set aside the previous order and remit the matter for further consideration underscores the court's commitment to ensuring justice and due process in the case.