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TMI Blog2018 (2) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... ST buses (BEST TV) running in Mumbai. Petitioner was the sole agent of BEST in respect of airing such advertisements on BEST TV. By an Agreement dated 2nd October, 2011 entered into between petitioner and respondent company, company engaged the services of petitioner for the purpose of displaying advertisements on BEST TV in 1300 Non AC buses and 250 AC buses for a period of 3 months from 7th October, 2011 till 7th January, 2012 for a consideration of Rs. 15 lakhs plus taxes. In accordance with the Agreement, petitioner displayed the advertisements on BEST TV and raised three invoices in the months of November, 2011, December, 2011 and January, 2012, each in the sum of Rs. 5,16,665/. 3 The company issued two separate cheques of Rs. 5 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to respondent company. It is stated in the petition that the company has not replied to the statutory notice issued under the provisions of Companies Act, 1956. 5 On record there is an affidavit of one Pradeep Kargutkar affirmed on 27th September, 2016 confirming advertising the petition in Free Press Journal (in English) and Navshakti (in Marathi) and also in the Maharashtra Government Gazette. There is a service report dated 31st August, 2016 filed by the Company Department stating that the notice sent under Rule 28 of the Companies Court (Rules), 1959 has been returned with the endorsement "left". Mr. Randeria, counsel for petitioner states that the recent MCA website extract indicates the status of the company as "Strike Off". At the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of incorporation of a company and a declaration under subsection (1) of section 11 to this effect has not been filed within one hundred and eighty days of its incorporation; or (c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section 455, he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. At the same time, nothing in Section 248 shall affect the power of the Court to wind up a company the name of which has been struck off from the register of companies. The effect of company notified as dissolved is that the company shall on and from the date mentioned in the notice under subsection (5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the company to the effect that it is not carrying on business or in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Official Gazette, and send to the company by registered post, a notice that, at the expiration of three months from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the resister and the company will be dissolved. (4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company have been completely wound up, and any returns required to be made by the liquidator have not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. Therefore, the averments in the petition are not controverted. Even to the statutory notice, no reply has been filed. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondentcompany runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming. 11 In the circumstances, having heard Mr. Randeria, counsel for petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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