2011 (12) TMI 274 - HC - Companies Law

Winding up petition - non payment of dues - Purchase order for supply of paper dyes - management taken over - service of notice for winding up - no show cause received - Held That - Registered A.D. cards clearly showing receipt of the statutory winding up notice. - the act of respondent no.1- company after having shifted its registered office and still insisting that all correspondence should be sent to a different address, was nothing but leading the petitioner down the garden path. Further, in the opinion of this Court, if the contention of the respondent no.1-company is accepted, it would amount to allowing the respondent no.1-company to take benefit of its own wrong. - Company is granted eight weeks time to pay the aforesaid debts to the petitioner. If the amount is not paid the petition would stand admitted.

Summary

Issues Involved:
1. Maintainability of the winding up petition.
2. Admission of debt by the respondent company.
3. Service of statutory winding up notice.

Issue-wise Detailed Analysis:

1. Maintainability of the Winding Up Petition:
The petitioner filed a winding up petition under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956, claiming that the respondent company was unable to pay its debts amounting to Rs. 2,38,160/-. The respondent's counsel argued that the petition was not maintainable as the statutory winding up notice was not served at the respondent's registered office. The respondent relied on three Form No. 18 documents to show changes in the registered office address, asserting that the notice was not served at the last registered address, thus the fiction under Section 434 of the Act was not attracted.

2. Admission of Debt by the Respondent Company:
The Court noted that the respondent company admitted the debt in its letter dated 16th November 2004, confirming that Rs. 2,38,160/- was payable to the petitioner as on 26th July 2004. This letter was signed by Mr. Narendra Kumar Goyal, who was competent to execute the letter as he resigned as Director only on 14th December 2004. The Court emphasized that this admission was from the respondent company itself and not any other group company, establishing clear liability.

3. Service of Statutory Winding Up Notice:
The Court examined the requirement under Section 434 of the Act, which mandates that the statutory notice be delivered at the registered office of the company. The petitioner issued the notice to addresses specified by the respondent in their communications, including C-55, Wazirpur Industrial Area, and 4806/24, Bharat Ram Road, Darya Ganj. The Court found that the respondent had requested all correspondence be sent to these addresses, amounting to a waiver of the right to receive notices at the registered office. The Court cited the Supreme Court's observation in Krishna Bahadur v. Purna Theatre, stating that statutory rights can be waived by conduct. The Court also referenced the principle that no party can take undue advantage of its own wrong, as established in Kusheshwar Prasad Singh v. State of Bihar.

Conclusion:
The Court concluded that the respondent's defense was a sham and moonshine. The respondent company was granted eight weeks to pay the debt, failing which the petition would be admitted, and the petitioner would be entitled to publish citations in specified newspapers and the Delhi Gazette. The case was listed for further proceedings on 23rd March 2012.