9911796707
TMI Blog2011 (12) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... h Sections 434 and 439 of the Companies Act, 1956 (for short 'Act') stating that the respondent no.1-company is unable to pay its debts allegedly amounting to Rs. 2,38,160/-. 2. It is the petitioner's case that on 18th March, 2004 respondent no. 1-company placed a purchase order on the petitioner for supply of paper dyes. According to petitioner, as its invoices were unpaid for a long period of time, it requested the respondent no. 1-company to make the payment. Learned counsel for the petitioner has also drawn the attention of this Court to the petitioner's own ledger account at page 23 of the paper book. 3. On 15th April, 2004, respondent no. 1-company requested the petitioner to send complete statement of accounts for the financial year 2003-2004 in respect of all its group companies at its head office at C-55, Wazirpur Industrial Area, New Delhi - 110 052. 4. On 16th November, 2004, respondent no. 1-company informed the petitioner that its management had been taken over by M/s. Shree Shyam Pulp Board Mills Ltd. By this letter, respondent no. 1-company confirmed that an amount of Rs. 2,38,160/- was due and payable to the petitioner as on 26th July, 2004 and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered office, the fiction as enumerated under Section 434 of the Act was not attracted to the present case. In this connection, he relied upon a judgment of this Court in State Black Sea Shipping Co. v. Viraj Overseas (P.) Ltd. [2004] 49 SCL 627 (Delhi). 10. Mr. Vijay further submitted that there was no admission of debt by respondent no. 1-company, namely, M/s. Gateway Specialty Papers Ltd. He contended that the petitioner in its winding up petition had erroneously relied upon the correspondence with M/s. Gateway Industries Ltd. which had no privity of contract with the petitioner. He also submitted that Mr. Narendra Kumar Goyal had ceased to be a Director of the respondent no.1-company w.e.f. 19th July, 2004 and, therefore, none of the letters written by him could be relied upon by the petitioner. 11. Mr. Vijay lastly submitted that no postal receipt had been filed by the petitioner to show that notice for winding up had in fact been issued by the petitioner to respondent no.1-company at its registered office. 12. Having heard the parties at length this Court is of the view that the respondent no. 1-company vide its own letter dated 16th November, 2004 has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially the respondent no.1-company's own letter dated 15th April, 2004 and M/s. Gateway Industries Limited's letter dated 11th March, 2005, it is apparent that it was the respondent who specifically requested the petitioner to send all correspondence with regard to Gateway Group of Companies to C-55, Wazirpur Industrial Area, New Delhi and at the address of M/s. Gateway Industries Ltd., i.e., 4806/24, Bharat Ram Road, Darya Ganj, New Delhi. The aforesaid letters dated 15th April, 2004 and 11th March, 2005 are reproduced hereinbelow:- (A) Letter dated 15th April, 2004 :- "Gateway Speciality Papers Ltd. Head Office : C-55, Wazirpur Industrial Area, Delhi-110052 (India) Tel. : 27375329, 27376204 Fax : 27375334 Manufacturers of : Writing-Printing Speciality Papers Date : 15/04/2004 TO M/s. Arroma Chemicals D-404, Shiromani Opp. Ocean Park, Nr. Nehru Nagar Satellite Road Ahmedabad-380015 Sub: Statement of Account for F.Y. 2003-2004 Dear Sir, This is inform you that our audit for Financial Year 2003-04 is under process and for finalization of accounts, our auditor require Confirmation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to a waiver of its right to receive the winding up notice at its registered office. The respondent no.1- company is estopped from raising the plea that the respondent no.1- company did not receive the winding up notice at its registered office. This Court is fortified in its view by the observation of the Supreme Court in Krishna Bahadur v. Purna Theatre [2004] 8 SCC 229 to the following effect:- "10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct. " [Emphasis supplied] 18. In fact, it seems to this Court that the act of respondent no.1- company after having shifted its registered office and still insisting that all correspondence should be sent to a different address, was nothing but leading the petitioner down the garden path. Further, in the opinion of this Court, if the contention of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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