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TMI Blog2018 (1) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... he winding up notice dated 1st October, 2012 and 11th December, 2012 are held to be in compliance with the requirement under Section 434 read with Section 51 of the Act as also under Section 27 of the General Clauses Act, 1897. The company petition is restored to its original position. The petition shall be listed before the Company Judge for further proceedings. The respondent shall maintain status quo of all its assets and properties, subject to further orders that may be passed in the company petition. - CO. APP. 84/2013 - - - Dated:- 8-1-2018 - MR. SANJIV KHANNA MS. PRATHIBAM. SINGH JJ. Appellant Through: Mr. Kunal Tandon, Advocate with Mr. Anirudh Bhargava, Manager, HDFC Bank. Respondents Through: Mr. A.P. Singh Mr. Aman Agarwal, Advocates. JUDGMENT Prathiba M. Singh J., The short question that arises in this case is as to whether the notice of winding up under Sections 433/434 of Companies Act, 1956 (for short the Act ) was duly served upon the Respondent or not. 2. The present appeal arises out of the judgement of the learned Single Judge dated 6th December, 2013 by which the company petition filed by the appellant/HDFC bank ( appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a winding up notice dated 1st October, 2012 which was followed up with another winding up notice dated 11th December, 2012. Having elicited no response to the said notices, the appellant filed the winding up petition before this Court registered as Company Petition No. 63 of 2013 on 28th January, 2013. An interim order was passed in the Company Petition No. 63 of 2013 on 15th February, 2013, restraining the respondent from creating any charge, alienating, transferring, parting of possession of any of the immovable assets and certain other directions were also passed directing the filing of affidavit by the Managing Director of the respondent. On 1st May 2013, despite the respondent being served, since there was no appearance, the Company Court proceeded further and appointed Provisional Liquidator. This order was challenged in appeal by the Respondent and the matter was remanded to the Company Judge by the Division Bench on 11th September, 2013. 5. An application being Co. Appl. 2126/2013, seeking vacation of the orders dated 15th February, 2013 and 1st May, 2013, was filed before the learned Company Judge. On hearing this application, the learned Single Judge passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes Ltd. 2011 (161) CompCas 214 (hereinafter Kotak Mahindra Bank ) Global Infosystem Ltd. v. Lunar Finance Ltd. 2012 (130) DRJ 307 (hereinafter Global Infosystem ) State of M.P. v Hiralal Ors. (1996) 7 SCC 523 (hereinafter Hiralal ) N. Parameswaran Unni v. G. Kannan Anr. (2017) 5 SCC 737 (hereinafter Parameswaran Unni ) Submissions of the Respondent 10. The respondent submits that it is a financially sound company with a turnover of about ₹ 40-50 crores. As per section 434 of the Act, the notice of winding up ought to be delivered at the registered office and reliance on Section 51 of the Act, by the appellant, is misplaced. According to the respondent, since the provision has very serious consequences, the deeming fiction as contained in Section 27 of the General Clauses Act, 1897 ought not to be made applicable. According to the respondent, because of the unreasonable conduct of the bank for recalling the loan facility, it has suffered huge losses. The respondent employs more than 500 persons in its business in the field of power transmission and construction of distribution systems. It has successfully settled with other banks such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;र ȣȲहै ( B-1 mein ye number nahi hai .) 14. The winding up petition came to be filed on 28th January, 2013. Thus, there is merit in the contention of the appellant that prior to the said filing, two notices dated 1st October, 2012 and 11th December, 2012 were sent to the respondent through all possible modes i.e. by courier and speed post registered A.D. The question is as to whether this satisfies the requirement under law that the notices were delivered. 15. Section 433 (e) and 434 of the Act reads as under: 433. Circumstances in which company may be wound up by Tribunal.- A company may be wound up by the Tribunal,- XXXXXXXXX (e) if the company is unable to pay its debts; XXXXXXXXX 434. Company when deemed unable to pay its debts (1) A company shall be deemed to be unable to pay its debts (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding [one lakh] 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 compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be served is returned. It is, in this context that the Bombay High Court in Cavendish Shipping Limited versus Poaris Marine Management Private Limited and Others, [2010] 156 Company Cases 108 (Bom.) had referred to an earlier decision of the Delhi High Court in Hotline Teletubes and Components Limited versus A.S. Impex Limited, [2004] 119 Company Cases 98 to observe and hold as under:- 33. Before concluding, it would be necessary to advert to the submission that service of the statutory notice was not effected at the Registered Office of the Company. The requirement of serving a statutory notice under Section 434(1)(a) arises when the deeming fiction that is created by the provision is sought to be pressed in aid. The deeming fiction under Section 434(1)(a) is, however, not exhaustive of the power of the Company Court if a Company is unable to pay its debts within the meaning of clause (e) of Section 433. The effect of Section 434(1)(a) is to create a deeming fiction that the Company is unable to pay its debts if a creditor has served upon the Company by registered post or otherwise a demand under his hand requiring the Company to pay the sum due and the Company h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Registered Office of the Company was returned with the remark that the addressee had left the premises. The Delhi High Court held that the documents which were placed on the record indicated that the Petitioner had sent the statutory notices to the Company at the address at which the Registered Office was located. In the meantime, the Company changed the address of its Registered Office as a result of which the statutory notices were not served. The Court held that sending of the notices by the Petitioner at the Registered Office of the Company in terms of the official records had to be regarded as legal and valid and the proceedings could not be held to be not maintainable because the Company had, in the meantime, changed its office. There is, therefore, no merit in the submission in regard to the maintainability of the Petition for want of a statutory notice under Section 434(1)(a). 18. The Supreme Court in Parameswaran Unni (supra) referring to Section 27 of the General Clauses Act and Section 114 of the Evidence Act observed that once notice is sent by registered post by correctly addressing it to the drawer, the service of notice should be deemed to be affe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant left no stone unturned in sending the notices by various modes to the registered office of the respondent. Moreover, under Section 51 of the Act a document could be served on a company by sending it to the company at the registered office. Section 51 of the Act reads as under: 51. Service of documents on company A document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post, or by leaving it at its registered office. Provided that where the securities are held in a depository, the records of the beneficial ownership may be served by such depository on the company by means of electronic mode or by delivery of floppies or discs. 21. A conjoint reading of Section 434 and Section 51 of the Act leaves no doubt that the appellant had made repeated efforts to serve the winding up notices to the respondent. There are certain other facts which go to show that the respondent may, in fact, have been avoiding service in this case. Such other facts are as follows: a. Service of the notice dated 1st October, 2012 at various of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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