2016 (5) TMI 1454 - HC - Companies Law

Winding up petition - company does not even exist at its registered office which appears in the records of the Registrar of Companies, West Bengal - deemed service of statutory notice - non-maintenance of the registered office - Held that - This winding up application has been taken out by the petitioning creditor on the basis of a statutory notice dated 27th October, 2015, which was caused to be served upon the company at its registered address but was returned by the postal authorities after all attempts to render effective service failed. As such, in the facts and circumstances of the instant case, the company shall be deemed to have been duly served with the statutory notice dated 27th October, 2015. Since there is a clear presumption of acknowledgement of debt by the company and its inability to pay off the debt, petition is admitted for a principal sum of ₹ 8,47,93,759/- as claimed in the statutory notice dated 27th October, 2015 together with interest thereon at the rate of 6% per annum to be calculated from the date of the statutory notice till actual payment. If the company pays off the entire amount, including interest, within a period of four weeks from date, the instant petition will remain permanently stayed. In default, the winding up petition will automatically stand revived

Summary

Issues:
Company's non-existence at registered office, failure to maintain registered office, statutory notice service failure, acknowledgement of debt, winding up application, interest calculation, payment deadline, advertisement requirements.

Analysis:
The judgment by the High Court of Calcutta, delivered by Mr. Biswanath Somadder, J., addresses multiple critical issues. Firstly, it highlights the concerning revelation that the company in question does not exist at its registered office as per records of the Registrar of Companies, West Bengal. A spot verification confirmed this fact, leading to initiation of proceedings under section 12(8) of the Companies Act, 2013. Subsequently, a winding up application was filed based on a statutory notice dated 27th October, 2015, which failed to be served effectively despite attempts. Due to this failure, the company is deemed to have been duly served with the statutory notice, leading to the admission of the winding up petition for a substantial sum claimed in the notice, along with interest at 6% per annum from the notice date.

Regarding the payment terms, the judgment sets a deadline for the company to pay the principal sum and interest within four weeks to avoid the winding up petition being permanently stayed. Failure to comply will result in automatic revival of the petition, with advertisement requirements in specific newspapers. Notably, the publication in the Official Gazette is waived. Ultimately, the court disposes of the case, emphasizing the importance of compliance with formalities for parties to obtain a certified copy of the order.

In conclusion, the judgment meticulously addresses the issues of company non-existence, statutory notice service failure, acknowledgement of debt, winding up application, interest calculation, payment deadline, and advertisement requirements, providing a comprehensive legal resolution to the complex situation at hand.