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TMI Blog2017 (11) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... due and payable by the Respondent Company i.e. the Respondent herein to the Petitioner i.e. the Appellant herein towards the payment of the outstanding dues of foreign buyers as stated in the Agreement dated 22/06/2006 and Addendum MOU dated 07/07/2009 executed by and between the Petitioner and the and the Respondent Company under the Post Shipment facility availed of by the Respondent Company through the Petitioner's bankers EXIM Bank in the years 2006070809 for USD 41094627.87 which is equivalent to Indian Rs. 184,92,58,254/, totally aggregating to Rs. 215,11,40,300/. The Petitioner accordingly issued a statutory notice dated 24/12/2010 on the Respondent Company calling upon the Respondent Company to pay the said amount of Rs. 215,11,40,300/ to the Petitioner within 21 days from the receipt of the said statutory notice. In view of the fact that the said statutory notice did not evince any response from the Respondent Company that the Petitioner filed the instant Company Petition being Company Petition No.276 of 2011 seeking windingup of the Respondent Company. Copy of the said Company Petition was sought to be served at the address of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the day was shown in the record of the Registrar of Companies, the notice is deemed to have been served on the Company though the packet has come back with the remark 'left'. The learned Single Judge accordingly made the Company Petition absolute in terms of prayer clauses (a) and (b) and resultantly directed winding-up of the Respondent Company under the orders of this Court. 6. The Respondent No.2 herein who is the ExDirector of the Respondent No.1 Company thereafter filed the instant Company Application No.448 of 2016 for condonation of delay of 530 days in filing the application and for recall of the said order dated 14/11/2014 passed by the learned Single Judge directing windingup of the Respondent Company. In justification of the delay, it was stated that the Applicant became aware of the order passed on 14/11/2014 on 27/04/2016 and that the instant Company Application was filed on 06/05/2016. The foundation for the said Application can be said to be the fact that the Applicant had not received the notice of the above Company Petition as the same was not served on its registered address at Koparkhairane, Navi Mumbai. It seems that no reply was filed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avi Mumbai address. It was also the submission of the learned Counsel that Rule 28 (2) also provides that the Company Petition can be served as the last known address of the Company in question of whose windingup is sought. The learned Counsel would seek to place reliance on the order directing the windingup as according to her, in the said order, the learned Single Judge who passed the final order of windingup in the Company Petition, has taken cognizance of the fact that the notice was sought to be served at the registered address which was in the record of the Registrar of Companies. It was, therefore, the submission of the learned Counsel that the learned Single Judge has erred in recalling the order passed in the Company Petition. 9. Per Contra, the learned Counsel for the Respondents Mr. Mayur Khandeparkar supported the impugned order. The learned Counsel would contend that the attempt of the Petitioner to serve the Respondent Company at the preadmission stage at Koparkhairane, Navi Mumbai address is of no avail in view of the fact that service of the Company Petition after its admission is also required to be effected at the registered address of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of business, or to such person and at such address as the Judge or Registrar may direct. Where the company is being woundup the petition or application shall also be served on the liquidator, if any, appointed for the purpose of windingup the affairs of the company." A reading of the said rule, therefore, makes it clear that the requirement is that a copy of the Company Petition along with notice in the prescribed form is to be lodged with the Company Department of this Court for facilitating the service to be effected on the Company of which windingup is sought. At this stage, it is required to be noted that on behalf of the Petitioner as many as three affidavits of service have been filed. However, the said affidavits of service are predating the admission of the Company Petition. The said affidavits disclose the three addresses at which the notice prior to the admission of the Company Petition was sought to be served on the Respondent Company. The said three addresses are as follows : (1) Office No.10, 2nd Floor, Dheeraj Heritage, S. V. Road, Milan Subway (Junction), Santacruz (W), Mumbai 400 054. (2) 1011, BWing, 11th Floor, I. J. Mima Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch followed by the learned Single Judge, it is not possible to accept the contention urged on behalf of the Petitioner that since the packet which was sought to be served on the Respondent Company at the Koparkhairane, Navi Mumbai address had returned with the remark that the Company was not available at the said address, the Petitioner was not required to amend the causetitle so as to incorporate the said Koparkhairane, Navi Mumbai address in the causetitle. In our view, in a matter as serious as a Company Petition which seeks direction for windingup of a Company which obviously has a serious consequence for the Company, the procedure cannot be shortcircuited as in the matter sought to be contended by the learned Counsel for the Petitioner i.e. the Appellant herein. Since the Koparkhairane, Navi Mumbai address was the address appearing in the 'Company Master Details' of the Registrar of Companies, the Appellant was required to take steps to serve the notice post the admission of the petition at the said address. It is also not possible to accept the contention of the learned Counsel for the Petitioner that Rule 28 (2) provides for service to be effected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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