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TMI Blog2016 (3) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempted. There is also the matter of correctness of this endorsement on the packets and the curious question of why the Petitioner did not attempt hand-delivery. Mr. Purohit shows me an Inward Register (though the printing is to the contrary) maintained between January 2013 and going on well into 2016. There are entries through February 2013, including around the time of the date of the statutory notice. Mr. Purohit points out that in the regular course there are entries showing correspondence received even from this particular Petitioner. That is the entry at Serial No. 154 of 4th April 2013. There is another entry of 15th April 2013 and yet another of 21st October 2013. The endorsement on the packet at page 141 is dated 25th February 2013. I find this extremely strange because in this register there are at least eight entries of that very date of letters received by the Respondent from various other parties. There are several too over the next few days. In other words, Mr. Purohit says, the registered office was open and functioning. Letters were being received and all were entered in various modes. There are later letters received from this very Petitioner. The Respondent ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is set out in a document at page 44, schedule B to the principal loan agreement. By this Letter of Guarantee, the Respondent unconditionally guaranteed as principal obliger jointly and severally with S.K. Agrotech Ltd. to pay without delay on demand to the Petitioner a sum of Euro 915,580/-. 3. This loan was slightly amended so that the loan would be repaid by the Respondent to the Petitioner in 10 equal consecutive instalments starting of 30th April 2012. This amendment agreement is 17th January 2012. A copy is at Exhibit D to the Petition. The Respondent executed a confirmation of guarantee Exhibit E , also dated 17th January 2012. 4. The case of the Petitioner is that as S.K. Agrotech Ltd, the principal borrower, and the Company both failed to pay the amount demanded, a legal notice was sent by the Petitioner to the Respondent. There was no reply to that statutory notice. A copy of the statutory notice is Exhibit F to the Petition. 5. Mr. Purohit for the Respondent Company submits that one must have regard to the entirety of the transaction. He says that there is material annexed to the affidavit in reply to show that the machines supplied by Kiefel GmbH to S.K. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent in one of the two Petitions before him was a guarantor. The result of that order was a finding that the defence is substantial. Indeed, paragraph 8 of the order dismisses Company Petition No. 340 of 2013. That was the Petition that was filed not against the principal borrower but against the guarantor. 8. Whatever may be my view, I am bound by the order of Hon ble Mr. Justice K.R. Shriram. I cannot go behind it. I certainly cannot sit in appeal over it. Nothing is shown to me to indicate that that order was per incuriam. It is not enough to ask me to take a different and contrary view, at least not on facts that are so close. This I cannot do as a matter of law. 9. The second defence raised by Mr. Purohit is that the statutory notice was never served on the Respondent as required in law. A copy of the statutory notice is at page 139 of the Petition. It is dated 20th February 2013. What is shown to me at page 145 is that the registered post parcel was returned undelivered with a postal remark I.P. . I am told that this means that Intimation Posted to the addressee, the Respondent-Company. Ms. Srivastava for the Petitioner urges me to hold that this endorsement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpound for it to the reasonable satisfaction of the creditor. 13. Clearly, the requirement in the Companies Act, 1956 is not merely that it should be sent by registered post or otherwise. It uses a different language. It uses the all-important words by causing it to be delivered at its registered office . This requires actual delivery of the notice. In this context, Mr. Purohit cites a decision of a learned Single Judge of this Court in Vysya Bank Limited v. Randhir Steel and Alloys (P) Limited, (1993 (76) Company Cases 244) where precisely the same question arose. The Court observed thus: Now, in the present case, the Petitioners sent the notice by registered post to the company s registered office but it was returned to the Petitioners undelivered and unserved. Thereafter the Petitioners sent the notice to the company at 89/19, Ramesh Bhawan, first floor, Tamba Kanta, Bombay 400 003. It is on this basis that it is claimed on behalf of the Petitioners that they have complied with the provisions of section 434(1)(a) of the Companies Act. I do not agree. The provisions of section 434(1)(a) have already been reproduced above. The demand in question has to be served on the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astava then turns to upon a decision of a learned Single Judge of this Court in Re: Ispat Industries Limited v. Unknown.(2005 (2) Bom CR 94 )There, the Court had before it a case where a notice despatched by post with the correct address was returned unclaimed. In that case, not one but three statutory notices were sent between October 1999 and April 2000. The first of these was sent to the office at Mahalaxmi, Mumbai. The second two were served at the Pune and Khar (Mumbai) offices respectively. A further statutory notice was sent on 21st July 2000 to the Pune Office. The company contended that its registered office was at Mahalaxmi. It was in this context that the Court held, inter alia, in paragraph 8 that this made no difference for a statutory notice had admittedly been served at the company s Mahalaxmi address. Secondly, another notice was served at the Khar address, which was actually the registered office of the company. There was some dispute about this and it is in this context that the observations in paragraphs 13, 14 and 15 of this judgment came to be made. The Ispat Court not only examined Section 434(1)(a) of the Companies Act, 1956, but also Section 27 of the Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered post (or other means; clearly hand-delivery is good enough) actually delivered. Something further would be required to be shown to establish that delivery was refused though attempted. 19. Matters might have been different if the Petitioners would have been able to establish that they had tried again to send that notice by registered post or hand-delivery and that the fresh notice had once again met the same fate. Even this material is not on record. In any case, there are the words or other means . This presumably allows for delivery by hand; none was attempted. 20. There is also the matter of correctness of this endorsement on the packets and the curious question of why the Petitioner did not attempt hand-delivery. Mr. Purohit shows me an Inward Register (though the printing is to the contrary) maintained between January 2013 and going on well into 2016. There are entries through February 2013, including around the time of the date of the statutory notice. Mr. Purohit points out that in the regular course there are entries showing correspondence received even from this particular Petitioner. That is the entry at Serial No. 154 of 4th April 2013. There is another en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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