2018 (1) TMI 503 - HC - Companies Law

Notice of winding up u/s 433/434 of Companies Act, 1956 as duly served upon the Respondent or not - Held that - In the present case, apart from the fact that the notice was sent by the appellant at several addresses of the respondent, an effort was also made to send the said notice even at the new registered office address. Thus, it is obvious that the appellant left no stone unturned in sending the notices by various modes to the registered office of the respondent. Moreover, under Section 51 of the Act a document could be served on a company by sending it to the company at the registered office The observations of the Supreme Court in Parameswaran Unni (2017 (3) TMI 1340 - SUPREME COURT OF INDIA) are apt in the present case. Several attempts were made by the appellant to serve the winding up notices on the respondent and the mere fact that it was not specifically mentioned in the company petition that the winding up notice sent by speed post was not returned unserved, would not be a ground to dismiss the company petition. In view of the above discussion, the winding up notice dated 1st October, 2012 and 11th December, 2012 are held to be in compliance with the requirement under Section 434 read with Section 51 of the Act as also under Section 27 of the General Clauses Act, 1897. The company petition is restored to its original position. The petition shall be listed before the Company Judge for further proceedings. The respondent shall maintain status quo of all its assets and properties, subject to further orders that may be passed in the company petition.

Summary

Issues Involved:
1. Whether the notice of winding up under Sections 433/434 of the Companies Act, 1956, was duly served upon the Respondent.
2. The validity of the dismissal of the company petition by the learned Single Judge on the grounds of improper service of the winding up notice.
3. Compliance with the statutory requirements for serving a winding up notice under the Companies Act, 1956, and related laws.

Detailed Analysis:

1. Whether the notice of winding up was duly served upon the Respondent:

The appellant contended that the winding up notice dated 1st October 2012, was properly served on the Respondent at its registered office and other addresses through courier and speed post. The appellant provided courier receipts, speed post receipts, tracking reports, and original envelopes as evidence. The second notice dated 11th December 2012, was sent to the Respondent's new registered office, which was obtained from the MCA website. The appellant argued that these efforts satisfied the legal requirement of serving the notice.

2. The validity of the dismissal of the company petition:

The learned Single Judge dismissed the company petition on the grounds that the winding up notice was not properly served. The appellant argued that the dismissal was erroneous and relied on precedents to assert that the service of notice should be deemed valid if sent to the registered office by registered post or otherwise. The appellant cited several cases, including Kotak Mahindra Bank Ltd. v. Hermonite Associates Ltd., Global Infosystem Ltd. v. Lunar Finance Ltd., and N. Parameswaran Unni v. G. Kannan & Anr., to support their position that the service of notice was proper and the court's approach was too pedantic.

3. Compliance with statutory requirements:

The court examined Sections 433 and 434 of the Companies Act, 1956, which outline the circumstances and methods for deeming a company unable to pay its debts. Section 434(1)(a) specifies that a company is deemed unable to pay its debts if it neglects to pay a sum exceeding one lakh rupees after being served a notice at its registered office by registered post or otherwise. The court noted that the appellant had made several attempts to serve the notice at various addresses, including the registered office, and that these efforts should be considered as satisfying the statutory requirements. The court referred to precedents, including the Supreme Court's judgment in Parameswaran Unni, which held that notice sent by registered post is deemed served even if returned with endorsements like "refusal" or "not available."

Conclusion:

The court concluded that the winding up notices dated 1st October 2012 and 11th December 2012 were in compliance with the statutory requirements under Section 434 read with Section 51 of the Companies Act, 1956, and Section 27 of the General Clauses Act, 1897. The company petition was restored to its original position, and the respondent was directed to maintain the status quo of all its assets and properties. The court did not delve into the merits of the winding up issue, leaving it to be examined by the Single Judge. The appeal was allowed with costs of ?25,000.