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TMI Blog2016 (3) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... tech Ltd. The purpose of this loan was to finance 85% of the aggregate value of a another contract entered into between S.K. Agrotech Ltd and one Kiefel GmbH, a German company. That transaction was for the export of two automatic pressure form machines. It is necessary only to note that the present Respondent was not the importer. 2. In the agreement in question in this Petition, i.e., the loan agreement, the Petitioner is shown as a guarantor in Article 1. Its liability as guarantor arises under a Letter of Guarantee. This is set out in a document at page 44, schedule B to the principal loan agreement. By this Letter of Guarantee, the Respondent unconditionally guaranteed as principal obliger jointly and severally with S.K. Agrotech Ltd. to pay without delay on demand to the Petitioner a sum of Euro 915,580/-. 3. This loan was slightly amended so that the loan would be repaid by the Respondent to the Petitioner in 10 equal consecutive instalments starting of 30th April 2012. This amendment agreement is 17th January 2012. A copy is at Exhibit "D" to the Petition. The Respondent executed a confirmation of guarantee Exhibit "E", also dated 17th January 2012. 4. The case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is another one of the three guarantors. Left to myself, I would have drawn a distinction between the Petition brought on a guarantee and the Petition brought on the contract with the principal borrower. The latter, against the principal borrower, might have required very different considerations from an action against a guarantor. 7. Having said that, I do not believe that I can draw that distinction, for the order of 7th December 2015 passed by Hon'ble Mr. Justice K.R. Shriram also deals with the case where the Respondent in one of the two Petitions before him was a guarantor. The result of that order was a finding that the defence is substantial. Indeed, paragraph 8 of the order dismisses Company Petition No. 340 of 2013. That was the Petition that was filed not against the principal borrower but against the guarantor. 8. Whatever may be my view, I am bound by the order of Hon'ble Mr. Justice K.R. Shriram. I cannot go behind it. I certainly cannot sit in appeal over it. Nothing is shown to me to indicate that that order was per incuriam. It is not enough to ask me to take a different and contrary view, at least not on facts that are so close. This I cannot do as a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 434(1)(a). That Section reads thus: "434.(1) A company shall be deemed to be unable to pay its debts- (a) 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." 13. Clearly, the requirement in the Companies Act, 1956 is not merely that it should be sent by registered post or otherwise. It uses a different language. It uses the all-important words "by causing it to be delivered at its registered office". This requires actual delivery of the notice. In this context, Mr. Purohit cites a decision of a learned Single Judge of this Court in Vysya Bank Limited v. Randhir Steel and Alloys (P) Limited, (1993 (76) Company Cases 244) where precisely the same question arose. The Court observed thus: "Now, in the present case, the Petitioners sent the notice by registered post to the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes of Section 434(1)(a) of the Companies Act, 1956. This is a complete misreading of Mr. Justice S.J. Kathawalla's order. He said nothing of the kind. He was not even dealing with a case under Section 434(1)(a). He was considering the question of service of a notice under Rule 28 of the Company (Court) Rules, 1959, after an order of admission and advertisement had been made. This is hardly a decision that can be extended even by implication to Section 434 of the Companies Act, 1956. 17. Ms. Srivastava then turns to upon a decision of a learned Single Judge of this Court in Re: Ispat Industries Limited v. Unknown.(2005 (2) Bom CR 94 )There, the Court had before it a case where a notice despatched by post with the correct address was returned unclaimed. In that case, not one but three statutory notices were sent between October 1999 and April 2000. The first of these was sent to the office at Mahalaxmi, Mumbai. The second two were served at the Pune and Khar (Mumbai) offices respectively. A further statutory notice was sent on 21st July 2000 to the Pune Office. The company contended that its registered office was at Mahalaxmi. It was in this context that the Court held, inter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Division Bench. 18. I must note that in the case before me all that we have is two alphabets "I.P." and these, I am told to assume without proof, man "Intimation Posted". Even if this is true, this is not refusal of delivery. This is not sufficient proof that the packet was returned 'unclaimed'. This is only indication that intimation was posted. It is no better than saying that a letter was sent by registered post. It does satisfy the requirement of Section 434(1)(a) of having a letter by registered post (or other means; clearly hand-delivery is good enough) actually delivered. Something further would be required to be shown to establish that delivery was refused though attempted. 19. Matters might have been different if the Petitioners would have been able to establish that they had tried again to send that notice by registered post or hand-delivery and that the fresh notice had once again met the same fate. Even this material is not on record. In any case, there are the words "or other means". This presumably allows for delivery by hand; none was attempted. 20. There is also the matter of correctness of this endorsement on the packets and the curious question of why the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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