9911796707
TMI Blog2002 (5) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and payable by the company to the petitioner on account of interest. The company issued a certificate of deduction of tax at source under section 203 of the Income-tax Act, 1961 certifying that a sum of Rs. 1,233 had been deducted on account of tax and also signed a confirmation of accounts as on 1-4-1998 confirming that a sum of Rs. 5,04,931 remained due and payable by the company to the petitioner. The company thereafter is stated to have paid interest from time to time and last of such payment was made on 16-11-1998. The company thereafter did not make any payment inspite of demand. In the premises, a statutory notice dated 20-2-2001 was caused to be issued by the petitioning creditor to the company. The statutory notice under section 434 addressed to the registered office of the company came back with the endorsement not known . A copy of the statutory notice addressed to another office of the company at No. 35, Vivekananda Road, Calcutta - 7 came back with the endorsement absent on 26-2-2001 and left on 27-2-2001. A copy of the statutory notice sent to Siris Poddar, one of the Directors came back with the endorsement refused on 22-2-2001. Another copy of the statutory no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 434 would not spring into operation and, accordingly, he dismissed the petition for winding up. An identical view was taken in the case of Yuba Bharti Steels v. Progressive Construction P. Ltd. [1999] (2) Comp. L.J. 228 by a learned Single Judge of the Andhra Pradesh High Court. He also relied on a Division Bench judgment in the case of N.L. Mehta Cinema Enterprises (P.) Ltd. v. Pravinchandra P. Mehta [1991] 70 Comp. Cas. 31 (Bom.). In this case also the winding up petition was dismissed for lack of service of notice upon the registered office of the company. In this case, however, it was held that the petitioning creditor could have maintained the application on the alternative claim that the company is not only deemed to be unable to pay its debts but that in fact also it was unable to pay its debts. It was further held that there was not even sufficient pleadings for this alternative claim and, therefore, the application was dismissed with liberty to apply afresh after proper service of notice. Mr. Sharma also relied on the case of Alliance Credit Investment Ltd. v. Khaitan Hostombe Spinels Ltd. [1999] 95 Comp. Cas. 436 , wherein it was held the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r constructive liability to pay the debts, as contemplated by section 163(1)( i ) of the Act, is available to the creditor. He is at liberty to prove still, in other ways that, in fact, the company is unable to pay its debts within the meaning of item ( v ) of section 162." (p. 500) 10. Mr. Bose followed by Mr. Sen vehemently urged that his client is entitled to succeed on the ground that the company is actually unable to pay its debts and, therefore, I should pass an order admitting the winding up petition. 11. Let us now examine, the petition as to whether this application can succeed on the basis of the alternative submission made by the learned counsel appearing on behalf of the petitioning creditor. The petitioning creditor in paragraphs 1 to 5 of the petition has given the statutory details. Paragraphs 6 to 14 are devoted to narrating as to how and in what sum the company became and is indebted to the petitioning creditor. Paragraph 15 of the petition alleges that no part of the claim of the petitioning creditor is barred by limitation. Rest of the allegations contained in the petition, which may be considered to be material for our purpose are contained in paragraphs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng at 9, Vidyasagar Street whereas the registered office of the company was situate at 19/1, Vidyasagar Street. There is no indication in the affidavit as to whether any special resolution for this purpose of removal of the registered office has been adopted as mandatorily required under section 146 of the Act nor is there any indication as to whether any intimation of the change has been given to the registrar. In the absence of a special resolution, registered office of the company cannot be shifted outside the local limits of the city and doing so is a punishable offence under the aforesaid section of the Act. 16. I have no doubt in my mind that the registered office of the company has been removed from the city of Calcutta in order to sabotage any proceeding, which may be initiated against the company for its winding up. The importance of the registered office is that the register of members, register of directors, account books, register of charges, instruments creating charges are mandatorily required to be kept at the registered office. Inspection of documents and registers can only be taken at the registered office of the company. The registered office is in the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at case, the summons had been served at the registered office of the company and the summons were accepted by one of the employees of the company who, it was alleged was not authorised to accept summons. In that background, their Lordships held that there was no sufficient service and that in order to be valid it must have been served upon a director of the company. Their lordships opined as follows: ". . . Sending summons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5, rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntaining the tenant s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on, or is received by, the tenant." (p. 633) 24. Section 434 requires the notice to be delivered at its registered office, by registered post or otherwise . In my view, the word served is stronger than the word delivered and in any event has to be treated as a cognate. In the present case, the registered cover has admittedly been sent by registered post at the registered office but it has come back because registered office ceased to be there and has been shifted to an unknown place. Therefore, no fault can be found with regard to service of the statutory notice. I therefore hold that the notice in this case was duly served. 25. Now coming back to the merits of the matter, I hold that there is even no semblance of a dispute with regard to the claim of the petitioning creditor. The alleged oral guarantee and the alleged payment of the sum of Rs. 15,000 without anything more is not likely to succeed in a suit either on the point of fact or on the point of law. Therefore, I hold that the so-called dispute is wholly illusory and that the claim of the petitioning creditor is wholly undisputed. The petitioner is entitled to recover a sum of Rs. 5 lakhs together with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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