TMI Blog2003 (7) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent under sections 433 and 434 of the Companies Act. 2. With the aforesaid allegations a petition was filed in this Court under sections 433, 434 and 439 of the Companies Act, which was registered as CP No. 176/1995, praying for winding up of the respondent company for its inability to pay its dues. The respondent on service of notice entered appearance and contested the petition by filing a reply. A preliminary objection was taken by the respondent regarding maintainability of the petition on the ground that the statutory notice was not served on the respondent company in accordance with the mandatory provisions of section 434 of the Companies Act. The aforesaid objection was considered by this Court. This court after considering the provisions of section 434 construed that the provision requiring service of statutory notice on the respondent company specifically provides that such notice is to be served on the registered office of the company and that the said provision is mandatory which view is supported by the provisions of section 151 of the Companies Act which provides that the documents may be served on a company or an officer thereof at the registered office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our legal notice dated 16-8-1997 purporting to be on behalf of State Black Sea Shipping Company, Ukraine addressed to my client Viraj Overseas (P.) Limited has been handed over to me by my client with instructions to reply thereto : At the outset I have been instructed to state that the claim made by you in said notice claiming an amount of Rs. 70,00,000 is totally frivolous and vexatious to the knowledge of your client and even otherwise the said amount is not legally recoverable from my client being barred by the law of limitation ....." 4. The petitioners filed the present petition praying for an order of winding up of the respondent company on the ground of its inability to pay the dues of the petitioners. The said petition was filed on November 14, 1997. The respondent filed its reply contending inter alia that Annexure G which is letter dated May 9, 1995 and shown to have been issued by the respondent to the petitioners is a fabricated document. It is alleged that the said letter was never in existence and was fabricated solely with the motive to allege that the claim of the petitioners is within the period of limitation as it was stated in the reply to the statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions also submitted that the petitioners in the petition has annexed a copy of the letter dated May 9, 1995 which is not in existence and is a fabricated document and is being relied upon by the petitioners only to save the question of limitation. It is pointed out that the said letter was neither referred to nor relied upon nor annexed in the earlier petition and also in the statutory notice that is shown to have been issued by the petitioners to the respondent before filing the present petition. Counsel appearing for the petitioners, however, submitted that the aforesaid Form No. 18 although might have been submitted by the respondent to the Registrar of Companies on December 5, 1996, the same was taken on record only on May 23, 2002 and therefore, the petitioners could not have any knowledge about the change of the registered office of the respondent company as the said change was not recorded by the Registrar of Companies till May 23, 2002. In support of their contention the petitioners referred to and sought to rely upon a certificate given by the Company Secretary which is annexed as Annexure A to the reply of the petitioners to the application being CA No. 1631/2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it changed its registered office from 7/8, Roop Nagar, Delhi-7, to Flat No. 203, Bhanot Trade Centre, Paschim Vihar, New Delhi, w.e.f. December 4, 1996 and the aforesaid intimation about the change of the address was given by the respondent to the Registrar of Companies on December 5, 1996 which was filed on December 11, 1996 as is indicated from the receipt annexed. The aforesaid position is also supported by the letter of the Assistant Registrar of Companies dated July 3, 2003. The aforesaid Form No. 18 dated December 5, 1996 and submitted by the respondent to the Registrar of Companies on December 11, 1996 was, however, taken on record by the Registrar under document No. 77. The petitioners in support of their contention that the aforesaid change of address of the registered office of the respondent company would be effective only from May 23, 2002, relied upon the endorsement annexed with the aforesaid letter dated July 3, 2003. As is indicated from the aforesaid endorsement, such date is entered as against the entry "Date of Registration". In my considered opinion the date of registration by the Registrar is immaterial and irrelevant while considering the date when the said ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act and therefore such of the communications which are required to be sent to the registered office should be addressed and sent to the actual registered office wherefrom the company carries on its business. If there is a change in the registered office of the company, the company shifts its business and operates from the said changed address of the registered office of the company from the date of the change itself and therefore even if recording of the change by the Registrar of Companies is of a subsequent date but the same shall be effective from the date the company actually changed its registered office. Therefore, the respondent company when it changed its registered office to the address at Flat No. 203, Bhanot Trade Centre, Paschim Vihar, New Delhi, w.e.f. December 4, 1996, any statutory notice under section 434 was required to be sent to the changed address of the registered office of the respondent company. It cannot be disputed that the aforesaid intimation submitted by the respondent in Form No. 18 was available with the Registrar of Companies as the same was filed, and the same is proved from the receipt enclosed which is also an admitted position by the Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor, 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; ( b )if execution or other process issued on a decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or ( c )if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company." 9. The aforesaid provision clearly lays down that a company would be deemed to be unable to pay its debts under section 434(1)( a ) of the Act under three conditions, namely, (1) the company is indebted in a sum exceeding five hundred rupees then due, (2) the company has been served with, by causing it to be delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision in Kalra Iron Stores v. Fridabad Fabricators (P.) Ltd. [1992] 1 Comp. LJ 310, and by the Allahabad High Court in Alliance Creditor Investments Ltd. v. Khaitan Hostombe Spinels Ltd. [1999] 95 Comp. Cas. 436, and also in the case of Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India [1954] 24 Comp. Cas. 507 (Cal.). In the said decision, the Calcutta High Court while interpreting a similar provision in the Companies Act, 1913, has observed thus :- "If a notice of demand is to operate as a valid statutory notice under section 163(1)( i ) it is to be delivered to the company at its registered office. A letter addressed to a place other than the company s registered office cannot be relied upon by the creditor for the purposes of section 163(1)( i )." 11. In N.L. Mehta Cinema Enterprises (P.) Ltd. v. Pravinchandra P. Mehta [1991] 70 Comp. Cas. 31 , a Division Bench of the Bombay High Court has held that section 434 clearly requires the notice of demand to be sent to the company at its registered office and that service of the notice at the administrative office of the company was not sufficient to raise the presumption under section 434 and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt petition also under section 433( a ) as well as under section 434(1)( c ) of the Act, therefore, the petitioners are entitled to say that the respondent company is unable to pay its debts without even serving a notice. In support of the said submission, counsel referred to the provision of section 434(1)( c ) which according to him is an independent provision and submitted that in order to prove a case under section 434(1)( c ) of the Act no notice was required to be served on the company. There cannot be a dispute with regard to the proposition that without even serving a notice as required under section 434(1)( c ) a creditor can seek for winding up of a company under section 433( e ) read with section 434(1)( c ) of the Act on the ground that the company is unable to pay its debts. This Court in the case of Kalra Iron Stores ( supra ) has also held that even without invoking the deemed inability of the company to pay its debts, a creditor can seek winding up of a company under section 433( e ) read with section 434(1)( c ) on the ground that the company is unable to pay its debts. In order to bring a case within the ambit of section 434(1)( c ) of the Act, the creditor has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 through account-payee cheque and that the aforesaid cheque amount of Rs. 70,00,000 was allegedly debited out of the accounts of the petitioners on April 20, 1993. It is the specific case of the petitioners in the pleadings as also in the statutory notice dated August 16, 1997 that the aforesaid amount was payable by the respondent on or before February 2, 1994. The present petition was filed in this Court only on November 13, 1997 which is beyond the period of limitation for making such a claim as provided for under the provisions of the Limitation Act. In this petition, however, the petitioners have pleaded that there is an acknowledgement by the respondent on May 9, 1995 which protects the claim from being barred by limitation. The aforesaid letter is shown to have been issued to the petitioners by the respondent on May 9, 1995 which states that further to the telephonic conversation the respondent confirmed that subject to necessary approval from the Reserve Bank of India the respondent would refund the loan of Rs. 70,00,000. In the said letter a query is put as to whether it would be possible to waive the interest amount or whether it is possible to reduce the liability. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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