2010 (12) TMI 1053 - HC - Companies Law

Winding up - notice under section 434(1)(a) of the Act was not served at the registered office of the respondent - company and was returned back with the remark closed office - maintainability of the company petition on the ground that the statutory notice as required under the provisions of the Companies Act was not served on the respondent-company.

Issues Involved:
1. Non-service of statutory notice under Section 434(1)(a) of the Companies Act, 1956.
2. Non-service of notice of hearing in the winding-up petition.
3. Compliance with Section 51 of the Companies Act, 1956 regarding service of documents.
4. Validity of the winding-up petition and the appointment of the Official Liquidator.

Issue-Wise Detailed Analysis:

Non-service of Statutory Notice under Section 434(1)(a) of the Companies Act, 1956:
The respondent-company contended that the statutory notice under Section 434(1)(a) was not served at their registered office, which was marked "closed office" by the postal authorities. The court examined the statutory requirements and emphasized that the notice must be delivered at the registered office of the company. The court referred to Section 51 of the Act, which allows service of documents by sending them to the registered office by post. The court found that the petitioner had complied with the statutory requirements by sending the notice to the registered office, and the respondent-company's admission that their office was closed amounted to an acknowledgment of their fault. The court cited various case laws, including *Alliance Credit & Investments Ltd. v. Khaitan Hostombe Spinels Ltd.*, and *Nuchem Ltd. v. C.S. Modi & Co. (P.) Ltd.*, to support the interpretation that the statutory notice was deemed served when sent to the registered office.

Non-service of Notice of Hearing in the Winding-up Petition:
The respondent-company claimed they were not served with the notice of hearing for the winding-up petition. The court noted that notices sent to the registered office and other addresses were returned with remarks indicating the addresses were left or closed. Consequently, substituted service by publication in newspapers was ordered and executed. The court held that substituted service was valid and sufficient under the circumstances, as the petitioner had exhausted all reasonable means to serve the notice.

Compliance with Section 51 of the Companies Act, 1956 Regarding Service of Documents:
The court emphasized that Section 51 of the Act prescribes the mode of service of documents, which includes sending them to the registered office by post. The court interpreted the term "served" in Section 434(1)(a) in conjunction with Section 51, concluding that the petitioner had fulfilled their obligation by sending the notice to the registered office. The court highlighted the practical implications of interpreting the service requirements, noting that companies cannot avoid service by keeping their registered offices closed.

Validity of the Winding-up Petition and the Appointment of the Official Liquidator:
The court rejected the respondent-company's contention that the winding-up petition was not maintainable due to non-service of the statutory notice and notice of hearing. The court found that the petitioner had complied with all statutory requirements and that the respondent-company's failure to receive the notices was due to their own actions. The court also dismissed the argument that failure to serve notice on the respondent-company's advocates before the Debt Recovery Tribunal amounted to fraud. The court concluded that the winding-up petition was validly admitted, and the appointment of the Official Liquidator was justified. The respondent-company's non-cooperation and failure to provide statutory records further supported the court's decision to dismiss the application to recall the winding-up order.

Conclusion:
The court dismissed the application to recall the ex parte winding-up order, holding that the statutory notice and notice of hearing were duly served in compliance with the Companies Act, 1956. The winding-up petition was validly admitted, and the appointment of the Official Liquidator was upheld. The respondent-company was directed to cooperate with the Official Liquidator and provide the necessary statutory records.

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