TMI Blog2014 (1) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... not been able to make out a case for proceeding against PPCL under Section 434 (1) (a) of the CA. The orders dated 15th February 2013 and 1st May 2013 are recalled - The OL is directed to restore the possession of the premises, assets and records taken over by him to PPCL through its Managing Director within one week - Decided against Petitioner. - CO.PET. No. 63 of 2013 & Co. Appl Nos. 191-192 of 2013,1049 of 2013, 1779 of 2013, 1785 of 2013 and Report No. 696 of 2013 - - - Dated:- 6-12-2013 - S. Muralidhar,JJ. For the Petitioner : Mr. Kunal Tandon with Ms. Nidhi Jain, Advocates. For the Respondent : Mr. Saurab Kirpal with Mr. A. P. Singh and Mr. Shyam Kumar, Advocates. Mr. Rupesh Goyal, proxy counsel for Mr. Ashish Makhija, Advocate for Official Liquidator. ORDER CA No. 2126 of 2013 (filed by the Respondent u/O 9 Companies Rules r/WOrder XXXIX Rule 4 CPC) 1. This is an application filed by the Respondent, Prem Power Construction Private Limited ( PPCL ), under Rule 9 of the Companies (Court) Rules ( Company Rules ), read with Order XXXIX Rule 4 of the CPC and Section 151 of CPC for, inter alia, setting aside the ex parte interim order dated 15th February 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status quo is maintained in respect of the assets of the company which are stated to have been taken over by the Official Liquidator. Learned counsel for the Official Liquidator confirms that the assets of the company have been taken over by the Official Liquidator and that status report in this regard has been placed before the learned Company Judge. In view of the aforesaid the matter is remanded back to the learned Company Judge for hearing afresh. Status quo shall be maintained in respect of the assets of the Appellant Company pending the hearing of the matter. Liberty is granted to the Respondent to move an appropriate application before the learned Company Judge for amendment of the petition, as prayed. A copy of this order be given dasti to counsel for the parties. 5. Pursuant to the above order, PPCL filed the present application with the prayers as earlier noticed. Mr. Saurabh Kirpal, learned counsel for PPCL submits that prior to the filing of the petition for winding up, no statutory notice was served on PPCL at its registered office in terms of Section 434 (1) (a) of the CA. He pointed out that before the DB, in its reply to Company Appeal No. 37 of 2013, HDF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents. He submitted that it was only after the above details were furnished that HDFC could amend the petition. 8. The petition filed by HDFC is only with reference to Section 434 (1) (a) of the CA. In other words the case of HDFC is based on the fact that despite service of the notice for winding up, PPCL did not reply or repay the debt and therefore, there is deemed inability of PPCL to repay its debts. The precise pleading as contained in paras 22 and 23 of the petition reads as under: 22. That claiming the aforementioned amount, the Petitioner sent a winding up notice dated 1st October 2012 to the Respondent at the registered office of the Respondent (as per Petitioner s records) at Khasra No. 261/1, Village Ghitorni, New Delhi 110 030. Copy of the said winding up notice dated 1st October 2012 is annexed herewith and marked an Annexure P-21. It is stated that no reply to the said winding up notice has been served on the Petitioner by the Respondent. 23. That the Petitioner also sent a winding up notice dated 11th December 2012 at the registered office of the Respondent (as mentioned on the website www.mca.gov.in) and again no reply was received by the Petitioner d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact remains that neither in the winding up petition nor in the reply filed to the appeal of PPCL, HDFC mentioned the fact that there were several notices sent to the registered office of the Respondent, both by speed post and by courier or that while the notice sent by courier was returned unserved, the one sent by speed post was not. At this stage Mr. Tandon referred to the documents placed on record by HDFC to show that the notices were in fact sent by speed post to the registered office of PPCL. In the absence of any pleading in that regard, it is not possible to infer a deemed service of notice on PPCL on that basis. 12. The provisions prescribing the procedure for winding up of a company have to be strictly construed, since it is indeed an extreme measure that brings the activities of a company to a complete halt. It is a remedy of last resort when other methods of recovery are not feasible or are ineffective. There is a deeming fiction of inability of the company to repay its debts if it is shown that despite service of notice the company has not responded or repaid the debt. 13. In Kotak Mahindra Bank Limited v. Hermonite Associates Limited it was held that even where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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