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2017 (11) TMI 1301

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..... the admission of the Company Petition was sought to be served on the Respondent Company. Insofar as the third address is concerned, the said address has been furnished to the Petitioner after a search was taken by the Petitioner in the office of the Registrar of Companies. The said address forms part of the 'Company Master Details' of the Respondent Company. In the extract furnished by the office of the Registrar of Companies, the address mentioned is the aforesaid third address namely Koparkhairane, Navi Mumbai. It is required to be noted that the preadmission notice was sought to be served at the said address. However, the packet came with remark as 'not available at the said address'. As indicated above, the Company Petition came to be admitted on 30/07/2012 and in terms of Rule 28, it was required on the part of the Petitioner that the notice be once again served on the Respondent at the said address i.e. Koparkhairane, Navi Mumbai. Admittedly, this has not been done. It is not possible to accept the contention urged on behalf of the Petitioner that since the packet which was sought to be served on the Respondent Company at the Koparkhairane, Navi Mumbai address had retu .....

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..... ues of foreign buyers as stated in the Agreement dated 22/06/2006 and Addendum MOU dated 07/07/2009 executed by and between the Petitioner and the and the Respondent Company under the Post Shipment facility availed of by the Respondent Company through the Petitioner's bankers EXIM Bank in the years 2006 07 08 09 for USD 41094627.87 which is equivalent to Indian ₹ 184,92,58,254/ , totally aggregating to ₹ 215,11,40,300/ . The Petitioner accordingly issued a statutory notice dated 24/12/2010 on the Respondent Company calling upon the Respondent Company to pay the said amount of ₹ 215,11,40,300/ to the Petitioner within 21 days from the receipt of the said statutory notice. In view of the fact that the said statutory notice did not evince any response from the Respondent Company that the Petitioner filed the instant Company Petition being Company Petition No.276 of 2011 seeking winding up of the Respondent Company. Copy of the said Company Petition was sought to be served at the address of the Respondent Company appearing in the record of the Registrar of Companies. However, the packet containing the copy of the petition was returned with the remark 'shifted .....

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..... 'left'. The learned Single Judge accordingly made the Company Petition absolute in terms of prayer clauses (a) and (b) and resultantly directed winding-up of the Respondent Company under the orders of this Court. 6. The Respondent No.2 herein who is the Ex Director of the Respondent No.1 Company thereafter filed the instant Company Application No.448 of 2016 for condonation of delay of 530 days in filing the application and for recall of the said order dated 14/11/2014 passed by the learned Single Judge directing winding up of the Respondent Company. In justification of the delay, it was stated that the Applicant became aware of the order passed on 14/11/2014 on 27/04/2016 and that the instant Company Application was filed on 06/05/2016. The foundation for the said Application can be said to be the fact that the Applicant had not received the notice of the above Company Petition as the same was not served on its registered address at Koparkhairane, Navi Mumbai. It seems that no reply was filed to the said Company Application. A learned Single Judge of this Court (R. D. Dhanuka, J.) considered the said Application and by the impugned order dated 22/02/2017, allowed th .....

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..... the Company in question of whose winding up is sought. The learned Counsel would seek to place reliance on the order directing the winding up as according to her, in the said order, the learned Single Judge who passed the final order of winding up in the Company Petition, has taken cognizance of the fact that the notice was sought to be served at the registered address which was in the record of the Registrar of Companies. It was, therefore, the submission of the learned Counsel that the learned Single Judge has erred in recalling the order passed in the Company Petition. 9. Per Contra, the learned Counsel for the Respondents Mr. Mayur Khandeparkar supported the impugned order. The learned Counsel would contend that the attempt of the Petitioner to serve the Respondent Company at the pre admission stage at Koparkhairane, Navi Mumbai address is of no avail in view of the fact that service of the Company Petition after its admission is also required to be effected at the registered address of the Company which, in the instant case, is Koparkhairane, Navi Mumbai. In support of the said contention, the learned Counsel would seek to rely on the Judgment of the Division Bench in the .....

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..... also be served on the liquidator, if any, appointed for the purpose of winding up the affairs of the company. A reading of the said rule, therefore, makes it clear that the requirement is that a copy of the Company Petition along with notice in the prescribed form is to be lodged with the Company Department of this Court for facilitating the service to be effected on the Company of which winding up is sought. At this stage, it is required to be noted that on behalf of the Petitioner as many as three affidavits of service have been filed. However, the said affidavits of service are pre dating the admission of the Company Petition. The said affidavits disclose the three addresses at which the notice prior to the admission of the Company Petition was sought to be served on the Respondent Company. The said three addresses are as follows : (1) Office No.10, 2nd Floor, Dheeraj Heritage, S. V. Road, Milan Subway (Junction), Santacruz (W), Mumbai 400 054. (2) 1011, B Wing, 11th Floor, I. J. Mima Complex, Link Road, Behind Goregaon Sports Club, Malad (W), Mumbai, Maharashtra. (3) A 729, TTC Industrial Area, Koparkhairane, Navi Mumbai. Insofar as the third address is .....

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..... served on the Respondent Company at the Koparkhairane, Navi Mumbai address had returned with the remark that the Company was not available at the said address, the Petitioner was not required to amend the cause title so as to incorporate the said Koparkhairane, Navi Mumbai address in the cause title. In our view, in a matter as serious as a Company Petition which seeks direction for winding up of a Company which obviously has a serious consequence for the Company, the procedure cannot be short circuited as in the matter sought to be contended by the learned Counsel for the Petitioner i.e. the Appellant herein. Since the Koparkhairane, Navi Mumbai address was the address appearing in the 'Company Master Details' of the Registrar of Companies, the Appellant was required to take steps to serve the notice post the admission of the petition at the said address. It is also not possible to accept the contention of the learned Counsel for the Petitioner that Rule 28 (2) provides for service to be effected at the last known address. The said provision would apply only if there is no registered address of the company. In our view, therefore, there is no merit in the above Appeal. Th .....

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