Ronojit Kumar Mitra, J. - (1.) This was an application for winding up of the company under sections 433, 434 and 439 of the Companies Act, 1956 for non-payment of the dues of the petitioner by the company, in respect to bills which had been raised by the petitioner for rendering advertisement services. By a tetter dated July 17, 1995 the company had appointed the petitioner its advertising agency for the Company's publicity activities. Accordingly, the petitioner had rendered advertising and publicity services to the company and raised the appropriate invoices and as on January 9, 1996 a sum of Rs. 7,19,206.79 became due and payable by the Company to the petitioner. The Company had issued a cheque for a sum of Rs. 1,00,000/- in favour of-the petitioner, and upon presentation the cheque had been returned marked 'insufficient funds'.
(2.) In those circumstances by a letter dated April 2, 1996 the petitioner caused its advocate to serve the statutory notice of demand on the company. The notice, however, had been served at the administrative office of the company and not at its registered office. Advocate of the petitioner had on behalf of his clients further demanded payment of the dues by a letter dated April 6, 1996 which was also served at the administrative office of the company.
(3.) By a letter dated May 9, 1996, one Deepak Dutt wrote to the petitioner that "The schedule of repayment agreed between us was that Rs. 1.00 lac would be cleared by end of April and the balance in 8 months starting from May, 1996." In the letter the petitioner had been assured that sum of Rs. 1,00,000/- would be paid immediately and payment of the balance amount would be re-scheduled, and the first instalment would be ; paid in the month of May, 1996. The company, however, failed to honour its commitment and by a further letter dated June 25, 1996 agreed to "Clear the outstanding well within 8 months starting from May, 1996". By a further letter dated December 18, 1997 the company wrote to the petitioner that "We expect to start clearing our dues shortly. In the meantime we require a statement of accounts from you so that we can verify and confirm the outstanding amount". The petitioner, in those circumstances and in view of the fact that the company was unable to pay its dues and caused its advocates to serve the statutory notice by registered post dated January 6, 1997. The letter had been addressed to the Managing Director at the administrative office of the company. Advocates for the company replied to the statutory notice and stated that : "My client M/s. Kadex India Private Limited at No. 1-C, Deauville Apartments, Church Street, Bangalore-560 001, has placed in my hands the notice issued by you dated 6.1.97 on behalf of your client M/s. R. K. Swamy/BBDO Advertising Pvt. Ltd., at No. 1/A, Church Street, Bangalore-560001, with instructions to reply the same as follows". It was argued by advocate appearing for the company that in serving the statutory notice on the Managing Director of the company at its administrative office, the petitioner had not complied with the mandatory provision of service of the statutory notice on the company at its registered office, and that on that account the application was bad in law. In support of his submissions he cited and relied on the decisions reported in 70 Company Cases 31, 69 Company Cases 757 and 73 Company Cases 136. It was also submitted on behalf of the company, by advocate, that none of the alleged bills had been annexed, to the petition and that there was no material to substantiate the alleged bills and establish their validity and legality. According to advocate on behalf of the petitioner, the claim had been admitted by the company on more than one occasion and from the records, it would appear that the company had received the notice and proceeded to take necessary steps in law accordingly. He argued that all particulars of the bills had been disclosed in the petition, and that there was no dispute in that respect in the letter in which the company had admitted the claim of the petitioner and assured the petitioner of payment in instalments.;