TMI Blog1993 (12) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... pany has taken out judge's summons praying that the petition be rejected in limine. In the affidavit in support 10 grounds have been set out for which it is submitted that the petition is liable to be rejected in limine. In ground No. 6 it is contended that the letter dated January 23, 1991, which purports to be a notice under section 434 of the Companies Act, 1956, does not comply with the provisions of the said section. It was, however, at the time of arguments that learned counsel for the company Mr. Kakodkar submitted that the notice relied upon by the petitioners, which is the foundation of the petition, could not be relied upon or taken advantage of for the present petition by the petitioners in view of an earlier petition being Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (1) thereof reads as follows : "If a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred 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 company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor...." This provision lays emphasis on the following requirements : ( a )The company must be indebted in a sum exceeding Rs. 500 then due. The words "then due" therefore, necessarily refer to the date on which the notice is issued. ( b )A notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such suit or such part of the claim which was covered by the suit unless the plaintiff had withdrawn the suit on the ground of formal defect with liberty to institute a fresh suit in respect of the subject-matter of the suit. It must, however, be stated that the bar arising under Order XXIII in the circumstances set out therein would relate to the subject-matter of the suit and the cause of action relating to that subject-matter. In other words what would be barred would be the remedy based upon the same cause of action. That would not be the same thing under the provisions of sections 433 and 434 of the Companies Act. Although the requirement to serve a notice is a condition precedent for instituting a winding up petition, it is still in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said to have been exhausted and it would be available as a valid notice for the purpose of instituting the present winding up petition. His submission is that since the remedy to file the winding up petition is not barred by reason of the rejection of the earlier petition merely on a technical ground, the notice would entitle the creditors to file a fresh petition and, therefore, the present petition should be regarded as maintainable. Learned counsel referred to the decision in the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424, 426. In that case, it was held in connection with notice under section 80 of the Code of Civil Procedure, as follows : "If the plaint which is being considered by the court has been prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this matter and I have already held above that the rejection of the petition earlier would not come in the way of the creditors in pursuing their remedy of winding up after serving a fresh notice. In this connection, I find considerable force in the submission of Mr. Kakodkar for the company that the perspectives are different relating to a notice under section 80 of the Civil Procedure Code, 1908, and the suit filed on its strength and a petition filed under section 434 of the Companies Act. He submitted that procedural irregularities in a suit which is a matter of right can be controlled but not in a petition and that since the discretion of the court in a winding up petition can be exercised either way, the remedy of a petition for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casion. That goes to show that a situation can arise where there is likelihood of variations in the contents of the notice and actual position on the date of filing the petition. In a petition for winding up where the discretion of the court is invoked strict compliance with the requirements of section 434 of the Companies Act, will have to be insisted upon. In the aforesaid view of the matter, I am inclined to hold that the present petition is incompetent and is not maintainable. In the affidavit in support several other grounds have been raised pointing out alleged non-compliance with the various requirements of the Act in support of the contention that the petition is not maintainable. However, I do not think it necessary to deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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