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TMI Blog2002 (12) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cheque which was repayable on demand after 3 months along with interest at the rate of 15% p.a. 3. It was alleged that the appellant/company acknowledged the sum of Rs. 5 lacs by granting receipt and also confirmed the said amount and the interest by confirmation of accounts as on 1st April, 1998 and also issued a certificate of reduction of tax at source on 30th June, 1998. 4. It was the further case of the petitioning creditor that although the company paid interest from time to time, last of such interest was paid on 10th of August, 2000 and thereafter has not paid any interest for the principal amount or any part thereof in spite of repeated demands. 5. It was contended that because of the reasons aforesaid there is now due and owing by the company to the petitioning creditor a sum of Rs. 6,20,000, Rs. 5,00,000 towards principal and Rs. 1,20,000 towards interest from 10th of August, 2000 to the date of filing of the winding up petition at the rate of 24% p.a. 6. It was also pleaded in the winding up petition that the petitioning creditor made a demand of the aforesaid sum through a letter of his advocate dated 20th February, 2001 and sent it by registered post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious disputes in the aforesaid matter and as such the said matter requires to be adjudicated in a properly instituted civil suit after recording evidence and as such, the winding up proceedings being in the nature of summary proceedings the said disputes cannot be decided. 11. In paragraph 7 of the affidavit-in-opposition the company furnished details of payment made by it to the petitioning creditor totalling the sum of Rs. 2,01,233. 12. In the affidavit it was also denied that the statutory notice was sought to be served in the registered office of the company. 13. It was also pleaded in paragraph 3(1) of the affidavit that due to change in the management of the company the erstwhile directors are no longer associated with the company and though the registered office of the company is situated in the Calcutta day to day affairs and general administration of the company is run by the present directors for the time being from Purnea in Bihar. 14. The learned Counsel for the appellant assailed the impugned order of the company court firstly on the ground that the learned Judge erred in law in holding that there was due service of the statutory notice upon the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the registered office of the company was removed from Calcutta to Purnea, Bihar and was relying on the inconsistency in the affidavit as to the address of the registered office of the company, ultimately held relying on a number of decisions that the statutory notice was served at the registered office of the company. 23. We are, however, unable to agree with the learned Judge on the said point. Although the learned Judge relying on the expression used in section 434 of the Companies Act, which requires the notice to be delivered at its registered office , held that it was so delivered and the petitioning creditor cannot be blamed for non-acceptance of the same by the company as the registered office of the company was removed to Purnea, Bihar, there was no evidence before the court that the registered office of the company was so removed. In the affidavit-in-opposition it was merely pleaded by the company that although the registered office is in Calcutta, the directors of the company are mostly carrying on the business from Purnea at Bihar but it was never pleaded that the registered office has been removed to Purnea, Bihar or it was ceased to exist at Calcutta at its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the question whether the service of notice under section 11 of the J K Houses and Shops Rent Control Act, 1966 can be said to have been complied with as the registered cover came back with the endorsement left without address returned to sender . It will appear from the said judgment itself, a portion of which is quoted by the learned Judge in the judgment, that the Supreme Court after discussing the practical difficulties in the matter of making endorsement by the postal peon under the facts and circumstances of that particular case held on reasonable interpretation of the aforesaid provision of the said Act the word served can be read as sent by post correctly and properly addressed to the tenant and the word receipt as the tender of the letter by the postal peon. In the instant case in spite of specific denial of service it was not proved by the petitioning creditor that the letter was tendered at the registered office. 28. The decision in the case of Fortune Copper Mining Co. [1870] 10 LR Equity Cases 390 referred to by the learned Judge is also not the authority for proposition that the presumption contemplated under section 434 of the Companies Act will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company is unable to pay its debt. Such being the position of law it cannot be held that the winding up petition is not maintainable in view of the invalidity of the statutory notice under section 434. 34. The learned Counsel appearing on behalf of the appellant has relied on the decision of the Allahabad High Court in the case of Alliance Credit Investment Ltd. v. Khaitan Hostombe Spinels Ltd. [1999] 95 Comp. Cas. 436; a Division Bench judgement of the Bombay High Court in the case of N.L. Mehta Cinema Enterprises (P.) Ltd. v. Pravinchandra P. Mehta , [1991] 70 Comp. Cas. 31; in the case of Yuba Bharati Steels v. Progressive Construction (P.) Ltd. 1999 (2) Company Law Journal 228; in the case of Vysya Bank Ltd. v. Randhir Steel Alloys (P.) Ltd. [1993] 76 Comp. Cas. 244 (Bom.). While we agree with such judgments to the extent that service of such statutory notice in the registered office of the company is mandatory, we are unable to agree with the view that in case it is found that such statutory notice was invalid not having been served in the registered office of the company the winding up petition has to be dismissed as not maintainable. 35. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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