9911796707
TMI Blog2003 (1) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... was "Rashid Mansion, Worli Point, Mumbai 400 018". However, an application on behalf of the respondent-company was filed on March 30, 2001, for change of registered address and the changed registered address of the respondent-company was : "Kartar (Nilum) Mansion, 2nd Floor, 389 Lamington Road, Mumbai 400 004" According to the respondent-company, this change has been recorded by the Registrar on May 29, 2001. Learned counsel ap pearing for the respondents has placed on record a certified copy issued by the office of the Assistant Registrar of Companies, which is taken on record and marked "X" for identification. The submission of learned counsel appearing, for the respondent-company is that as per the provisions of sub-section (1) of section 434, the notice of demand has to be served at the regis tered office of the company. On the date of the notice, i.e., January 14, 2002, the registered office of the company was not at Rashid Mansion and therefore, the notice dated January 14, 2002, does not comply with the requirement of sub-section (1) of sec tion 434 and, therefore, it is invalid. Learned counsel relying on a judgment of Division Bench of this court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)( a ) of section 434 which reads as under : "434(1)( a ) If a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfac tion of the creditor". A perusal of this section shows that a creditor of a company has to serve on the company a demand notice at its registered office by registered post or otherwise requiring the company to pay the sum due and if the company within a period of three weeks from the date of receipt of the demand notice neglects to pay the sum or to secure or to compound for it to the reasonable satisfaction of the creditor, a statutory fiction arises and the company is deemed to be unable to pay its debts. Now, so far as the registered office of the company is concerned, a perusal of the provisions of section 13 of the Companies Act shows that the memorandum of every company has to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituation of the registered office and of every change therein, shall be given within thirty days after the date of the incorporation of the company or after the date of the change, as the case may be, to the Registrar who shall record the same : Provided that except on the authority of a special resolution passed by the company, the registered office of the company shall not be removed ( a )in the case of an existing company, outside the local limits of any city, town or village where such office is situated at the commencement of this Act, or where it may be situated later by virtue of a special resolution passed by the company; and ( b )in the case of any other company, outside the local limits of any city, town or village where such office is first situat ed, or where it may be situated later by virtue of a special resolution passed by the company". 5. A perusal of the provisions of sub-section (2) of section 146 shows that every company within a period of 30 days after its incorporation, has to give notice to the Registrar communicating its place having its registered office. If the company desires to make change in its registered office, then the company has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient to raise a presumption or fiction under section 434. Similarly, the clear words of rule 33 would preclude the application of that rule to any notice of demand made on the company under section 434. The matter is abundantly clear and requires no authority to justify our view". (p. 36) 6. Thus, the Division Bench has held that the requirement under section 434 of serving demand notice on the registered office of the company is a mandatory requirement and has to be strictly complied with. Once the requirement of section 434 of service of notice on the registered office of the company is held to be a mandatory requirement, there is no question of there being any substantial compliance with the provisions because the settled rule of law that a mandatory requirement of statute requires a strict compliance and there is no question of any substantial compliance. The concept of "substantial compliance" comes in only in case the provision is held to be directory. A perusal of the judgment of the Karnataka High Court relied on by learned counsel for the petitioners shows that, according to the Karnataka High Court, substantial compliance with the requirement of serving notice on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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