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2014 (4) TMI 655 - HC - Companies LawWinding up petition - Violation of contract - Non payment of dues - Respondents claim that statutory notice was not sent to the registered office address of the company - Held that:- Appellant filed a further affidavit dated 18th February 2014. In paragraph 2 of this affidavit, its deponent states that an examination of the records with the Registrar of Companies shows that Sundeep Plastics Pvt Ltd had its registered office at Udyog Bhavan, and that there is only one form no.18 showing this, dated 15th December 1980. After the change of name, the registered office address is at 52, Mamta “A”, New Prabhadevi Road. This is the address shown on Sundeep Polymer’s annual return for 28th September 1998, and the Directors’ Report and Balance Sheet as on 31st March 2000. The Company/LLP Master Data record, too, shows only this address. To this affidavit, at Exhibit “D”, is another print out of the Company/LLP Master Data, and this also shows the 52, Mamta “A” address. The CIN no of the company (both when it was known as Sundeep Plastics Pvt Ltd and later when its name was changed to Sundeep Polymers Pvt Ltd) is the same - Respondent's reply, dated 27th March 2001, shows only one address: 52, Mamta “A”, New Prabhadevi Road, Mumbai 400 025. This is the very address to which the statutory notice was sent. Whether transaction is hit by the Bombay Money-Lenders’ Act 1946 and the agreement is not a hire-purchase agreement but a loan, thus making the petition not maintainable - Held that:- Under the present hire-purchase agreement, Tata Motors is the owner of the Mercedes Benz. Sundeep Polymers is the hirer. On Sundeep Polymers paying all the agreed instalments to Tata Motors, it had the option of taking the car as its property. Till that time, the car remained the property of the Tata Motors. This is no moneylending transaction. It is an agreement of hire-purchase, a bailment of the car with a provision for sale added. Bar of limitation - Held that:- The hire-purchase agreement is dated 14th July 1998. The petition was filed on 20th June 2001. Even if the date of the agreement is reckoned as the starting point of limitation (which it cannot), the petition is in time. Sundeep Polymers was in default of payment of instalments between 14th August 2000 and 14th February 2001. Taking either of those two dates as the starting point of limitation, the petition is well within time. Whether appellant has an arbitral award in its favour and therefore cannot maintain this petition - Held that:- A petitioning-creditor with a decree need not put it into execution before bringing a winding up petition. He can proceed either under Section 434(1)(b) or, having served a notice, move against the debtor-company under Section 434(1)(a) - Decided partly in favour of applicant.
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