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TMI Blog2013 (2) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... se is that the money covered by the dishonoured cheques has been paid to the seller and the petitioner should look to the seller to realise the dues. Though there is substantial basis to the petitioner’s assertion that the company’s alleged payment to the seller may not discharge the company of its obligation to pay the petitioner, the facts are not such as would prompt the company court to admit the petition on the ground that it is just and equitable to wind up the company despite the presumption as to the company’s inability to pay its debts not having been established by the petitioner. Petition fails and it is permanently stayed on the ground that the company’s inability to pay its debts has not been made out and the facts as pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the petitioning creditor that if the company in CP No. 592 of 2011, Ramsarup Industries Limited, did not make default in making payment in terms of the order passed in CP No. 592 of 2011, the petitioner herein would take no further steps in the criminal proceedings launched against the directors and officers of this company in Gurgaon. Ramsarup Industries Limited has defaulted in making payment in terms of the order passed on February 8, 2012 in CP No. 592 of 2011. Consequently, the petitioner herein has caused this matter to be taken up for hearing. It is the admitted position that the present petition is founded on a notice dated May 28, 2010 addressed to the company and three of its directors and captioned as a notice under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the registered office of the company having apparently been shifted from Netaji Subhas Road to Maharshi Debendra Road in February, 2009, the letter-head of the company in letters issued as late as in November, 2009 showed that its registered office was at Netaji Subhas Road and the one at Maharshi Debendra Road was only as administrative office. The petitioner refers to Section 147(1)(c) of the Act to suggest that it is incumbent on a company to have its registered office mentioned in all its business letters and the failure by a company to comply with such provision visits the company with a fine which may extend to Rs.5000/-. The petitioner insists that in the wake of the mandatory provision of Section 147(1)(c) of the Act and the com ..... 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 had been shifted to a new address. The statutory notice was addressed to such registered office of the company. Upon it returning unserved, substituted service was effected by publishing the notice in a widely-circulated newspaper published in Lucknow and Varanasi. When the petition came up before the court and the notice returned unserved, substituted service was effected in the same newspapers. The court then proceeded to pass appropriate orders. In course of the recalling application, the court found that the registered office of the company had been shifted with mala fide intent and from place to place. It is on such ground that the court refused to recall the order of winding up. A Madras High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other than its registered office. Despite the company not urging such ground, it was the court which found that the legal fiction would not be available to the creditor, as is evident from paragraph 13 of the report: (13) It appears to us, however, that although the learned counsel for the appellant did not himself lay much stress on his first point, it is yet a point which must succeed. According to the petition for winding up itself, the registered office of the Railway Company is situated at No. 135, Canning Street, Calcutta. That being so, if a notice of demand was to operate as a valid statutory notice under S. 163(1)(i) of the Indian Companies Act, it would have to be delivered to the Company at its registered office. The letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text of the identical provision in the predecessor statute as Section 434(1)(a) of the current Act, of the general principle that a deeming provision must be strictly construed and all conditions therein must have been adhered to before the legal fiction thereunder can be seen to operate. In the light of the law as enunciated in Bukhtiarpur Bihar Light Railway Co. Ltd, it is not open to the company Judge of this court to accept that the inference of a company s inability to pay its debts may still be made by court under Section 434(1)(a) of the Act even if the notice provided for thereunder is not addressed to the registered office of the company. The petitioner admits that clause (b) of Section 434(1) has no manner of application in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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